UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


BAR  ASSOCIflTION  j 

■?-<')  OF  C-k::^ 

I        SAK  FRANCISCO 


<ih 


PRACTICE 


IN 


SPECIAL  PROCEEDINGS 


IN  THE 


COURTS  OF  RECORD 


STATE  OF  NEW  YORK 


UNDER  THE 


CODE  OF  CIVIL  PROCEDURE  AND  STATUTES,  WITH  FORMS. 


BY 


J.  NEWTON  FIERO, 

DEAN  OF  THE  ALBANY  LAW  SCHOOL. 


IN  TWO  VOLUMES 
VOL.   L 


SECOND  EDITION. 


ALBANY,  N.  Y. 

MATTHEW  BENDER,  PUBLISHER. 
1899. 


T 

18^ 


COPYRIGHT,    1899, 

By  MATTHEW  BENDER. 


J"  PREFACE  TO  FIRST  EDITION. 


The  lapse  of  more  than  twenty  years  since  the  appearance  of  a 
treatise  on  the  subjects  discussed  in  this  volume  seems  to  render 
any  explanation  of  the  motives  for  this  publication  entirely  un- 
necessary. 

In  addition  to  that  fact,  however,  it  may  be  noted  that  by  the 
enactment  of  chapters  14  to  29  of  the  Code,  taking  effect  in  1880, 
many  and  radical  changes  were  made  in  the  conduct  of  special 
proceedings,  then  for  the  first  time  codified.  In  the  meantime, 
too,  many  of  the  remedies  like  Certiorari,  Mandamus,  General 
Assignments,  and  Proceedings  to  Acquire  Lands  for  Railroad 
Purposes  have  gradually  grown  in  importance,  and  the  body  of 
authorities  on  all  the  subjects  treated  is  nearly,  if  not  quite,  twice 
as  great  as  at  the  time  of  the  issue  of  the  last  text-book  in  which 
they  are  considered. 

As  a  matter  of  convenience  to  the  profession,  and  to  avoid 
examination  of  the  separate  volume,  or  reference  to  other  portions 
of  this  volume,  the  Code  or  Statute  on  each  subject  is  followed 
by  a  citation  of  authorities,  and  forms  are  given  in  the  body  of 
the  text,  enabling  the  practitioner  to  examine  the  legislative 
enactment  as  construed  by  the  courts  and  to  consult  the  pre- 
cedents connected  with  both,  with  the  least  possible  labor. 

In  case  criticism  should  be  made  that  the  course  of  procedure 
as  given  in  many  instances  is  not  orderly  or  logical,  it  can  only  be 
said  that  the  arrangement  of  the  Code  and  Statutes  in  that  respect 
has  been  strictly  followed  as  the  only  safe  method,  even  though 
it  may  have  resulted  in  stating  the  practice  on  appeal  in  a  matter, 
before  providing  for  the  commencement  of  the  proceeding. 

The  plan  of  the  work  includes  all  the  special  proceedings  pro- 
vided for  by  the  Code  of  Civil  Procedure,  sections  1991  to  2471 
inclusive,  and  in  addition  treats  general  assignment,  reference  of 
claims  against  estates,   proceedings   for   sale   of  real   estate  of 


ui 


776853 


iv  PREFACE   TO   FIRST   EDITION. 

religious  corporations,  and  proceedings  to  acquire  title  to  lands 
for  railroad  purposes,  as  provided  for  by  statutory  enactment. 

The  classification  made  by  the  Code  reduces  very  largely  the 
number  of  what  were  at  one  time  classed  as  special  proceedings 
excluding  partition,  foreclosure,  mechanics'  liens,  and  numerous 
other  subjects  heretofore  treated  as  such,  and  now  regarded  as 
actions. 

By  reason  of  that  fact,  and  by  condensing  the  text  so  far  as  was 
possible  without  affecting  clearness  and  accuracy,  and  by  giving 
full  pages  of  matter,  the  work  has  been  confined  to  a  single 
volume  without  sacrificing  any  substantial  benefits,  although  the 
authorities  cited  include  all  the  State  Reports  up  to  44  Hun, 
8  St.  Rep.,  and  104  N.  Y.  R. 

If,  as  has  been  said,  every  lawyer  owes  it  to  his  profession  to 
write  a  book,  my  duty  in  that  respect  is  discharged,  and  it  remains 
for  the  profession  to  determine  whether  its  merits  constitute  a 
sufficient  reason  for  its  existence.  The  fact  that  it  was  written 
during  hours  snatched  from  active  practice  is  no  excuse  for  short- 
comings, and  if  it  does  not  meet  the  demands  of  the  profession,  it 
will  richly  deserve  that  condemnation  which  it  will  be  certain  to 
receive  at  their  hands.  While,  if  it  prove  of  service,  I  need  not 
bespeak  a  hearty  recognition  of  that  fact  from  my  brethren  of  the 
profession,  for  whose  benefit  it  was  prepared  and  to  whose  criticism 
it  is  submitted. 

J.  NEWTON  FIERO. 

Kingston,  October  i,  1887. 


PREFACE  TO  SECOND  EDITION. 


Since  the  first  edition  of  this  work  was  published  in  1887, 
there  have  been  issued  more  than  fifty  volumes  of  the  Court  of 
Appeals  Reports,  being  one-third  of  the  whole  number  published, 
and  more  than  eighty  volumes  of  the  Reports  of  the  General 
Terms  and  Appellate  Divisions  of  the  Supreme  Court.  On  many 
of  the  more  important  subjects  the  number  of  decisions  has  more 
than  doubled  in  the  eleven  years  that  have  elapsed  since  the 
first  publication,  as  notably  in  the  case  of  Mandamus,  Habeas 
Corpus,  Certiorari,  Contempt,  and,  to  a  somewhat  less  extent, 
Supplementary  Proceedings.  In  the  meanwhile  other  subjects 
have  attained  such  importance  as  to  demand  treatment  in  a 
work  of  this  character  attempting  to  give  a  complete  system  of 
Practice  in  Special  Proceedings.  New  chapters  are  devoted  to 
Proceedings  under  the  Tax  Law,  in  the  Court  of  Claims,  under 
the  Election  Law,  and  several  other  topics.  The  passage  of  the 
Condemnation  Law  has  changed  the  practice  and  resulted  in 
numerous  decisions,  while  the  statute  changing  References  of 
Claims  against  Estates  from  a  Special  Proceeding  to  an  Action 
has  removed  that  proceeding  from  the  scope  of  this  work.  The 
Special  Actions,  first  published  in  1888,  passed  through  a  second 
edition  in  1897,  and  has  become  familiar  to  the  Bar  of  the  State, 
and  the  same  plan  as  to  arrangement  and  treatment  has  been  fol- 
lowed here  which  proved  convenient  and  satisfactory  in  that  work. 

In  the  preface  to  the  first  edition,  I  expressed  a  hope  and  ex- 
pectation that  the  work  would  be  "  of  service  to  my  brethren  of 
the  Bar."  The  hearty  recognition  which  has  been  accorded  to  it, 
now  justifies  me  in  assuming  that  fact  as  a  sufficient  warrant  for 
a  new  edition  bringing  the  Code,  Statutes  and  authorities  down 
to  January  ist,  1899. 

J.  NEWTON  FIERO. 

Albany,  N.  Y.,  April  10,  1899. 


ANALYTICAL  TABLE  OF  CONTENTS. 


CHAPTER  HEADINGS. 

Chapter.  page 

1.  Special  proceedings  generally  considered i 

2.  State  writs 3^ 

3.  Writ  oi  habeas  corpus  to  bring  up  a  person  to  testify 51 

4.  Writ  of    habeas    corpus   and  writ  of  certiorari  to  inquire 

into   cause  of  detention 56 

5.  Mandamus I4 1 

6.  Prohibition 278 

7.  Writ  of  assessment  of  damages 315 

8.  Writ    of  certiorari 316 

9.  Discharge  of  insolvent  debtor  from  his  debts 420 

ID.   Exemption   from  arrest  or  discharge  from  imprisonment 

of  insolvent   debtor   468 

11.  Discharge  of  imprisoned  debtor  from  imprisonment 475 

12.  Care  of  the  property  of  a  person  confined  for  crime 494 

13.  Summary  proceedings  to  recover  possession  of  land 500 

14.  Civil  contempt - 57^ 

15.  Criminal   and  legislative  contempts 649 

16.  Proceedings  to  collect  a  fine 674 

17.  Proceedings  to  discover  death  of  tenant  for  life 678 

18.  Proceedings  for  appointment  of  a  committee  of  the  person 

and  property  of  a  lunatic,  idiot,  or  habitual  drunkard. 

General  powers  and  duties  of  committee 685 

19.  Proceedings  for  the  disposition  of  the  real  property  of  an 

infant,  lunatic,  idiot,  or  habitual  drunkard 731 

20.  Arbitrations 772 

21.  Foreclosure  by  advertisement 813 

22.  Proceedings  to  change  name  of  an  individual  or  corpo- 

ration    845 

23.  Proceedings  for  voluntary  dissolution  of  a  corporation. . .  854 

24.  Proceedings  supplementary  to  execution  against  property  914 

25.  Proceedings  to  compel  delivery   of  books  to    a   public 

officer 1009 

26.  Proceedings  for  the  condemnation  of  real  property 1020 

27.  Proceedings  for  sale  of  corporate  real  estate 11 18 

28.  Admission  of  attorneys 1 146 

29.  Court  of  Claims Ii55 

vii 


viii  ANALYTICAL  TABLE   OF   CONTENTS. 

Chapter.  page. 

30.  Discharges  of  mortgages  of  record  in  certain  cases 1 1 74 

31.  Resignation  or  removal  of  trustees,  and  appointment  of 

successor 1182 

32.  Proceedings  under  Election  Law 1 196 

33.  Proceedings  under  Tax  Law 1 234 

34.  National  Bankruptcy  Law 13°^ 

35.  General    assignments I3^3 

36.  Investigation  of  expenditures  of  towns  and  villages 1445 

37.  Adoption  of  children 1449 

38.  Proceedings  to  compel  attorney  to  pay  over  moneys. . .  1463 

39.  Disbarment  of  attorneys I479 

CHAPTER  I. 

SPECIAL  PROCEEDINGS  GENERALLY  CONSIDERED. 

Article.  page. 

I.  Special   proceedings  defined 2 

Sec.   S333-   Definition  of  "  action  " 2 

3334.   Id.;    "special    proceeding" 3 

3343,  subd.    20.    Miscellaneous    general    defini- 
tions and  rules  of  construction 3 

II.   General  provisions  of  the  Code  relating  to  the  subject. .  6 

Subd.    I.    Jurisdiction  of  special  proceedings 6 

Sec.   340,  subd.    4.  Jurisdiction 6 

342.  Action,  etc.,  wherein   county  judge  is  in- 
capable to  act 7 

348.  When  jurisdiction,  etc.,  co-extensive  with 

Supreme   Court ....    7 

25.  No  discontinuance  by  reason  of  vacancy, 

etc 7 

26.  In  New  York,   one  judge   may  continue 

proceedings  commenced  before  another  7 
37.   Causes    tried    elsewhere    than    at    court- 
house   8 

44.  No  action   or  special  proceeding   abated, 

etc.,  by  failure  or  adjournment  of  court  8 

52.  Substitution  of  one  officer  for  another  in 

special  proceedings 8 

53.  Proceedings  before  substituted  officer. ...  8 
Subd.    2.    Miscellaneous      regulations      applicable      to 

special   proceedings 10 

Sec.   414.   Cases  to  which   this  chapter  applies 10 


ANALYTICAL  TABLE  OF  CONTENTS.  IX 

Article.  page. 

II.  General  provisions  of  the  Code  relating  to  the  subject 6 

Sec.   433.   Service   of  process,   etc.,   to   commence  a 

special    proceeding 11 

716.   Certain  receivers   may  hold  real  property  11 
815.    Bonds,    etc.,   not    affected    by   change    of 

parties 11 

825.    Papers  in  special   proceedings  ;  where  to 

be    filed n 

860.   Witness  exempt   from    arrest ....  11 

867.   Production,  etc.,  of  book  of  account 11 

1688.   When  special  proceeding  to  recover  real 

property  not  allowed 12 

1777.   Misnomer,  when  waived 12 

1814.  Action,  etc.,  by  and  against  executor,  etc., 

to  be  brought  in  representative  capacity  12 
1900.  Action  for  suing,  etc.,  in  name  of  another 

made  also  a  misdemeanor 12 

2516.  Proceedings  to  be  commenced  by  citation  12 

2517.  Id.  ;  within  the  Statute  of  Limitations. ...  13 
2861.  Justice's  jurisdiction  must  be  specially  con- 
ferred by  law 13 

2868.   Justices  to   hold  court;  general  powers. .  13 
3150.   Transfer  of  action  when  justice's  term  ex- 
pires, etc 13 

3152.   Proceedings  upon  transfer 13 

3316,  Juror's  fees  in  special  proceedings 13 

3352.   Effect  of  this  act  upon  proceedings  taken, 
or  rights   accrued,   etc.,    under  former 

statutes 14 

III.  Some  special  proceedings  enumerated 14 

IV.  Costs  in  special  proceedings 20 

Sec.   3240.   Costs  ;  in  a  special  proceeding 20 

3258.  When    defendant    entitled     to     increased 

costs 20 

3259.  Increased  disbursements  not  allowed 20 

3279.   This  title  applies  to  special  proceedings. .  20 

V.  Appeals 29 

Sec.    1356.   Appeal  from  order  made  in  the  same  court  29 

1357.  Id.;  when  made  by  another  court  or  judge  29 

1358.  Preceding  order  may  be  reviewed 29 

1359.  Limitation  of  time  to  appeal 29 

1360.  Stay  of  proceedings  ;  hearing   of  appeal  ; 

decision  thereupon 29 


X  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

V.  Appeals 29 

Sec.  1361.  This  title  qualified.     Application  of  provi- 
sions relating  to  actions 30 

190.  The  jurisdiction  of  the  Court  of  Appeals  in 

civil  action 30 

191.  Limitations,  exceptions,  and  conditions. ..  30 

CHAPTER  II. 

STATE  WRITS. 
Article.  page. 

I.  State  writs  enumerated  and  defined 3^ 

Sec.    1991.   State  vi^rits  enumerated 3^ 

II.  Regulations  as  to  State  writs 43 

Sec.    1993.  State  writ  at  the  instance  of  the  people. ...  43 

1994.  Relator,  when  joined  with  people  ;  parties, 

how  styled 43 

1992.  To  be  under  seal  of  court 43 

1996.   Allowance  to  be  indorsed  and  signed 43 

1995.  Parties  may  appear  by  attorneys 43 

1998.   When  writ  returnable 44 

III.  Service  of  State  writs  and  obedience  thereto 46 

Sec.    1 999.    How  served 46 

2000.  Habeas   corpus,  how  served  ;  fees  and  un- 

dertaking,   when   required 46 

2001.  Fees  to  persons  not  officers 46 

2002.  Last  two  sections  qualified 46 

2003.  Mode  of  serving  writ,  when  person    con- 

ceals himself,   etc 47 

2004.  Person  served  to  obey  habeas  corpus....  47 

2005.  Id.  ;  as  to  certiorari 47 

2006.  Time  of  returning  habeas  corpus 47 

IV.   Final  order  and  its  enforcement 49 

Sec.    1997.   Final  order  ;  certain  proceedings  same  as 

in    actions 49 

2007.  Punishment  for  non-payment  of  costs 49 

CHAPTER  III. 

THE  WRIT  OF  HABEAS  CORPUS  TO  BRING  UP  A  PERSON  TO 

TESTIFY. 

PAGE. 

Sec.    2008.   Habeas  corpus  to  testify  ;    when    allowed 

by  court  or  judge.  .    5^ 

2009.   Id.;  when   allowed  by  judge 5^ 


ANALYTICAL  TABLE  OF  CONTENTS.  xi 

PAGE. 

Sec.   20I0.   Id.;  in  suit  before  justice  of  the  peace,  etc.  51 

201 1.  The  last  three  sections  qualified 51 

2012.  Application  ;  how  made 52 

2013.  Certain  prisoners  to  be  remanded 52 

2014.  Officer  to  obey  and  return  writ 52 

150.   (Chap,  460,  Laws  1847.)  Convicts  as  wit- 
nesses    52 

155.  (Chap.  460,  Laws  1847.)    Writ  to  produce 

prisoners  as  witnesses 53 

CHAPTER  IV. 

THE  WRIT  OF  HABEAS  CORPUS  AND  THE  WRIT  OF  CER- 
TIORARI  TO   INQUIRE  INTO  THE  CAUSE  OF  DETEN- 
TION. 
Article.  page. 

I.   When  habeas  corpus  granted 57 

Subd.  I.   Nature  and  purpose  of  the  writ 58 

Sec,  2066.  Application  of  this  article  to  other  writs 

of  habeas  corpus 58 

2015.  Who    entitled   to   prosecute   the   writ  ; 

habeas  corpus  may  issue  on  Sunday.         58 
2044.   When  certiorari  does  not  prevent  habeas 

corpus 58 

Subd.  2.   When  writ  granted  on  behalf  of  the  persons 

imprisoned 61 

Sec.  2016.   When  neither  writ  shall  be  allowed. ...         61 
Subd.  3.  When  writ  granted  to  determine  custody  of 

child 69 

Sec.  40.  Habeas    corpus    for    child     detained    by 

parents 69 

41.   Habeas     corpus    for    child    detained    by 

Shakers 70 

Subd.  4.  When   writ   granted   in    extradition   cases. 
Code   Criminal    Procedure,  sec.  827, 

subd.  2 75 

II.  What  court  may  grant  writ  and  application  therefor.. .         77 
Sec.  2017.    How  and  to  whom  application  for  Aa^gas 

corpus  or  certiorari  made 77 

2018.  Application   in    another   county;  proof 

required 77 

2019.  Contents  of  petition 77 

2021.   Form  of  writ   oi  habeas  corpus 78 


Xll  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

II.  V/hat  court  may  grant  writ  and  application  therefor ,.  77 

Sec.   2023.   When  writ   returnable   before   another 

judge 78 

III.   Duty  of  court,  officer,  or  other  person  relative  to  writ. .  92 

Sec.  2025.   When  writ  to  issue  without  application.  92 

2051.  Penalty  for  violating  the  last  section. . .  92 

2052.  Id.;    for   concealing   prisoner,    etc.,    to 

avoid  writ 92 

2053.  Id. ;  for  aiding,  etc 92 

2020.  When   writ   must   be  granted ;   penalty 

for  refusing.  .^ - 92 

2065.   Penalty  for  refusing  copy   of  process, 

etc 9j 

rV.   Return  must  be  made  to  writ  and  notice  of  hearing.. . .  93 

Sec.  2024.   When  writ  sufficient 93 

2026.  Return  ;  its   contents 93 

2027.  Habeas  corpus  ;  body  of  prisoner  to  be 

produced,  unless,  etc '       94 

2037.  Custody  of  prisoner  pending  the  pro- 

ceedings    94 

2038.  Notice  to  person  interested  in  detention.  94 

V.  Proceedings  on  return 103 

Sec.  2031.   Proceedings  on  return  oi  habeas  corpus.  103 

2032.  When  prisoner  to  be  remanded  103 

2033.  When  to  be  discharged  in  civil  cases. . .  103 

2034.  The  last  section  qualified 104 

2036.   Id. ;  when  prisoner  may  be  committed 

to  another  officer.    104 

2039.  Prisoner  may  controvert  return  ;  proofs 

thereupon 104 

2040.  Proceedings,  etc.,  of  prisoner 104 

VI.  Proceedings  when  prisoner  discharged  and  effect  of  dis- 

charge . .    122 

Sec.  2048.   Order  substituted  for  writ  of  discharge  ; 

service  and  effect  thereof 122 

2049.  Enforcing  order  for  discharge  ;  penalty, 

etc 122 

2050.  When  prisoner  discharged  not  to  be  re- 

imprisoned  ;  when  he   maybe 122 

VII.   Proceedings  when   prisoner  entitled  to  bail 124 

Sec.  2035.   Proceedings  on    irregular  commitment  124 
2045.    Bail   on   certiorari;  when  and  how  or- 
dered    124 


ANALYTICAL   TABLE    OF   CONTENTS.  xiu 

Article.       ^  page. 

VII.  Proceedings  when  prisoner  entitled  to  bail 124 

Sec.  2046.    Id.;  by  whom  and  how  taken 124 

2047.   Discharge  of  prisoner  bailed 124 

VIII.   When  warrant  or  warrant  of  attachment  issues 125 

Sec.    2054.   Warrant    to    bring    up    prisoner   about 

being  removed 125 

2055.  When  offender  to  be  arrested 126 

2056.  Execution   of  warrant ;   proceedings  to 

relieve  prisoner 126 

2057.  Id.;  proceedings   to    punish  offender..  126 

2028.  Proceedings   on  disobedience  of  writ..  126 

2029.  Id. ;  precept  to  bring  up  prisoner 126 

2030.  Id.;  power  of  county  may  be  called..  126 
IX.   Certiorari  to  inquire  into  cause  of  detention 130 

Sec.  2022.    Form  of  writ  of   certiorari 130 

2041.  When  certiorari  to  issue  on  application 

of  habeas  corpus 130 

2042.  Proceedings  upon  its  return 130 

2043.  Id. ;    when    discharge    to    be    granted ; 

when   proceedings  to  cease 131 

X.  Appeal 135 

Sec.  2058.   When    appeal   may  be   taken  in    cases 

under  this  article 135 

2059.  Id. ;    by  people 135 

2060.  Prisoner  who  appeals  may  be  admitted 

to  bail 136 

2061.  Id. ;  recognizance,  etc 136 

2062.  Id. ;  on  appeal  to  Court  of  Appeals.  . . .  136 

2063.  Custody  of  prisoner  until  he  gives  bail  136 

2064.  Recognizance  valid  for  adjourned  terms  136 

CHAPTER  V. 

MANDAMUS. 

-Article.  page. 

I.   Nature  of  the  writ ;  when  and  against  whom  allowed. .  142 

Subd.  I.   Writ  defined 142 

2.  Purpose  of  the  writ  and  when  it  lies 144 

3.  When  granted  against  State  officers 153 

4.  When  granted  against  county  officers 155 

5.  When    granted    against    town    and   village 

officers ,. 1 60 

6.  When  granted  against  municipal    corpora- 

tions, city  officers,  and  boards 162 


Xiv  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

I.  Nature  of  the  writ ;  when  and  against  whom  allowed. . . .  142 

Subd.  7.   When  granted  against  election  officers 170 

8.  When  granted  against  private  corporations 

and  associations 173 

9.  When    granted  to   control  right  to  public 

office 177 

10.  When  granted  in  matters  relating  to  taxa- 

tion   182 

11.  When  granted  to  compel  action  by  inferior 

tribunals 183 

IL  By  what  court  writ  may  be  granted 186 

Sec.  2068.  When  writ  granted  at  Special  Term. ...  186 
2069.  Id.  ;  at  term  of  the  appellate  division  of 

the  Supreme  Court 186 

III.  Alternative  and  peremptory  writs 191 

Sec.  2067.   Kinds   of  writ;    how   alternative   writ 

granted 191 

IV.  Peremptory  writ  and  return  thereto 204 

Subd.  I.   Parties 204 

Sec.  2070.   When  peremptory  mandamus  to  issue 

in  first  instance 204 

Subd.  2.  The  petition  or  affidavit 212 

3.  The  writ  and  practice  on  moving  therefor..  217 

4.  The  return    223 

Sec.  2072.   Writ;  how  returnable 223 

2075.   Motion  to  set  aside  writ 223 

2073.  Return  or  demurrer  to  first  writ. . .    ....  •    223 

2074.  Return,  how  made 22$ 

V.  Alternative  writ  and  proceedings  thereon 227 

Subd.  I.   Application  for  alternative  writ 227 

Sec.  2067.   Kinds    of   writ ;    how   alternative   writ 

granted 227 

Subd.  2.   Demurrer  and  return  to  alternative  writ 231 

Sec.  2076.  Contents  of  alternative  writ ;  demurrer 

thereto 231 

2072.   Writ;  how  returnable 232 

2071.   Alternative  writ  ;  how  served 232 

2074.  Return;  how  made 232 

2077.  Form  and  contents  of  return 232 

2078.  Further   return    cannot  be   compelled ; 

demurrer  to  return 232 

2075.  Motion  to  set  aside  writ 233 

Subd.  3.   Issues  and  proceedings   thereon 240 


ANALYTICAL  TABLE  OF  CONTENTS.  XV 

Article.  page. 

V.  Alternative  writ  and  proceedings  thereon 227 

Sec.  2080.  Application    of    certain    provisions    of 

chapter  sixth 240 

2081.  Service  of  notice  of  filing  return,  and 

demurrer 24 1 

2079.   Issue  of  fact  ;  when  it  arises 241 

2082.  Subsequent  proceedings  the  same  as  in 

an  action 241 

2083.  Issue  of  fact  ;  how  triable.    ....    241 

2084.  Id.  ;  where  triable 241 

2085.  Issue  of  law  upon  General  Term  manda- 

mus ;  how  and  where  triable 242 

Subd.  4.   Precedents  for  proceedings   on    alternative 

writ 253 

VI.   Defences  to  mandamus 260 

VII.   Stay  of  proceedings  ;  damages  and  fines 265 

Sec.  2089.   Stay   to   proceedings ;    enlargement    of 

time 265 

2088.   When  relator  to  recover  damages 265 

2090.   Fine  in  certain  cases 265 

VIII.  Costs,  appeals  ;  proceedings  for  contempt 269 

Subd.  I.   Costs 269 

Sec.  2086.   Costs 269 

Subd,  2.   Appeals 272 

Sec.  2087.   Appeals 272 

Subd.  3.  Contempt  in  disobeying  writ 276 

CHAPTER  VI. 

PROHIBITION. 

Article.  page. 

I.  The  character  and  purpose  of  the  writ 278 

11.  When  the  writ  lies.     By  what  court  granted 281 

Subd.  I.   When  the  writ  lies 281 

2.   By  what  court  granted 286 

Sec.  2092.   When  writ  granted  at  Special  Term. . . .  286 

2093.  Id.  ;  by    the    appellate    division  of  the 

Supreme  Court 286 

III.   The  alternative  writ  and  proceedings  thereon 287 

Sec.   2091.   Kinds  of  writ ;  how  granted 287 

2094.  Alternative    writ   must   issue   first ;    its 

contents 287 

2095.  Id.  ;   when  returnable  ;  how  served. . . .  287 


xvi  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

IV.   Proceedings  on  return 301 

Sec.  2096.   Absolute  writ  issues,  unless  return  made.  301 

2098.  Return  by  party  ;  proceedings  when  he 

adopts  judge's  return 302 

2099.  Proceedings  after  return  ;  trial  by  jury..  302 
V.   The  absolute  writ ;  when  granted 307 

Sec.  2096.   Absolute    writ     issues,     unless     return 

made 307 

2100.  Final  order  ;  costs 307 

VI.   Quashing  the  writ,  stay  of  proceedings  and  appeal 313 

Sec.  2097.   Legal  objections  ;  how  taken  ;  motion 

to  quash  or  set  aside  writ 313 

2101.  Appeal 313 

2102.  Stay    of  proceedings;    enlargement   of 

time 3^4 

CHAPTER  VII. 

THE  WRIT  OF  ASSESSMENT  OF  DAMAGES.  3^5 

CHAPTER  VIII. 

WRIT  OF  CERTIORARI. 

Article.  page. 

I.   Office  of  writ  of  certiorari 317 

II.   When  the  writ  issues,  and  to  what  body  or  officer 320 

Sec.    2120.  Cases  where  writ  may  issue 320 

2 1 2 1.  Cases  where  it  cannot  issue 320 

2122.  The  same 3^° 

2146.  "Body    01     officer;"    "determination;" 

what  the}  /nclude 320 

III.  What  court  may  issue  writ  and  within  what  time    338 

Sec.    2123.  When  issues  from   Supreme  Court 338 

2124.  When  from  another  court 338 

2125.  Limitation  of  time  for  review 338 

2126.  Id.;  in   case  of  disability 339 

IV.  Petition  and  notice  of  application  for  the  writ 342 

Sec.    2127.  Application    for    writ;    where    and    how 

made 3-^2 

2128.  When  notice  necessary;   service  thereof  342 

V.  The  writ 35^ 

Sec.    2129.  To  whom  writ  directed 358 

VI.   Proceedings  upon  the  writ 3^^ 

Sec.    2132.  When    and  where  writ  returnable 368 

2 1  ^o.  Mode  of  service 3^^ 


ANALYTICAL  TABLE  OF  CONTENTS.  xvii 

Article.  page. 

VI.  Proceedings  upon  the  writ 368 

Sec.    2 1 3 1.  Stay  of  proceedings 368 

2137.  When  third  person  maybe  brought  in..  369 

VII.   Return  to  writ  and  proceedings  thereon 374 

Sec.    2133.  Subsequent  proceedings  as  in  an  action. .  374 

2134.  Return  ;  when  and  how  made 374 

2135.  Id.;  how  compelled ;    fees  for  making..  374 

2136.  Id.;  after  term  of  ofiSce  expired 374 

2139.  Id.;  upon  affidavits 374 

VIII.   Hearing  and  questions  to  be  determined 386 

Sec.    2138.  Hearing  upon   return 386 

2140.  Questions  to  be  determined 387 

IX.   Final  order  and  its  effect 408 

2141.  Final  order  upon   the  hearing 408 

Sec.    2142.  Restitution    may  be   awarded 408 

2144.  Entry  and  enrollment  of  final  order....  409 

2145.  Effect   thereof 409 

2143.  Costs   409 

3253.  Additional    allowance  to  either  party  if 

difficult  cases,  etc 409 

X.  Restriction  on  the  right  to  the  writ 416 

Sec.    2147.  Application    of    this    article    to    certain 

special  cases 416 

2148.  Id.;  to  civil  cases  only 416 

XI.  Appeals 417 

CHAPTER  IX. 

DISCHARGE  OF  INSOLVENT    DEBTOR    FROM    HIS   DEBTS. 

Article.  page. 

I.   Who  may  be  discharged  and  by  what  court 421 

Sec.    2149.  Who   may  be   discharged 421 

2150.  To  what  court  application  to  be  made..  421 

II.  The  petition  and  accompanying  papers 422 

Sec.    2 1 51.  Contents  of  petition 422 

2152.  Consent  of  creditors  to  be  annexed....  423 

2153.  Consent    of   executor,    administrator,   re- 

ceiver,  etc 423 

2154.  Id.;    of   corporations,    etc 423 

2155.  Id.;    of  partnership 423 

2156.  Effect  of   consent  where   petitioner  is  a 

joint  debtor 423 

2157.  Consent  of  purchaser  of  debt,  etc 423 


xvill  ANALYTICAL  TABLE   OF   CONTENTS. 

Article.  page. 

II.  The  petition  and  accompanying   papers 422 

Sec.   2158.  Consenting  creditor  must  relinquish   se- 

. . curity 424 

2159.  Penalty  if  creditor  swears  falsely 424 

2160.  Affidavit  of  consenting   creditor 424 

2161.  When    non-resident    creditor    to     annex 

account,   etc 424 

2162.  Petitioner's    schedule 425 

2163.  His  affidavit 425 

IIL  Order  to  show  cause  and  proceedings  thereon 439 

Sec.    2164.  Order  to  show  cause 439 

2165.  How  order  published  and   served 439 

2 166.  Hearing 440 

2167.  Putting  cause  on  calendar 440 

2168.  Opposing  creditor   to  file  specifications, 

and   may  demand  jury  trial 440 

2169.  Id.;  to  file  proofs,  ifnot  named  in  schedule  440 

2170.  Proceedings  if  jurors  do  not  agree 440 

2 1 71.  When  insolvent  required  to  produce  his 

non-resident  wife 440 

2172.  Examination  of  insolvent 44 1 

IV.  When  insolvent  discharged  and  proceedings  thereon. .  448 

Sec.    2173.  When    insolvent  cannot  be  discharged. .  448 

2174.  When  assignment  to  be  directed 448 

2175.  Assignment ;  contents,  and  to  whom  made  448 

2176.  Id. ;  trustees,  how  designated 449 

2177.  Effect  of  assignment 449 

2178.  When  discharge  to  be  granted 449 

2179.  Proceedings  where  trustee  refuses  to  give 

certificate,   etc 449 

2 1 80.  The   same 449 

V.   Discharge  and  its  effect 457 

Sec.    2181.  Discharge,   etc.,   to  be  recorded 457 

2182.  Effect  of  discharge 45^ 

2183.  Id.;  exception  as  to  foreign  contracts  or 

creditors 45^ 

2184.  Id.;  as  to  debts,  etc.,  to  the  United  States 

and  the  State 45^ 

2185.  Insolvent  to  be  released  from  imprison- 

ment    459 

2186.  Discharge,    when    void 459 

2187.  Invalidity   may   be   proved  on  motion  to 

vacate  order  of  arrest,  etc 459 


ANALYTICAL  TABLE  OF  CONTENTS.  Xl'x 

CHAPTER  X. 

EXEMPTION  FROM  ARREST  OR  DISCHARGE  FROM  IMPRIS- 
ONMENT OF  AN   INSOLVENT  DEBTOR. 

Article.  page. 

L   Discharge  of  insolvent  debtor,  the  petition  and  papers. .  468 
Sec.  2188.   Who  may  be  exempted,   and  by  what 

court 468 

2189.  Contents  of  petition 468 

2190.  Petitioner's  schedule 469 

2191.  His  affidavit 469 

IL  Order  to  show  cause  and  hearing 470 

Sec.  2192.   Order  to  show  cause 470 

2193.    Hearing,  etc 471 

III.   Discharge  and  its  effect 472 

Sec.  2194.   Order    directing    assignment;     assign- 
ment pursuant  thereto 472 

2195.  When  discharge  to  be  granted  ;  effect 

thereof 472 

2196.  Discharge  to  be  recorded,  etc 472 

2197.  Petitioner  to  be  released  from  imprison- 

ment    472 

2198.  Debts  not  affected,  etc.; 473 

2199.  Discharge,  when  void 473 


CHAPTER  XI. 

DISCHARGE  OF  AN  IMPRISONED  DEBTOR  FROM 

IMPRISONMENT. 

Article.  page. 

L  Who  may  be  discharged  and  by  what  court 475 

Sec.  2200.   Who  may  be  discharged 475 

2201.  To  what  court  application  to  be  made..  475 

2216.  Creditor  may  notify  debtor  to  apply  for 

discharge 476 

2217.  Effect  of  failure  so  to  apply 476 

2218.  Debtor  to  United  States,  etc.,  not  to  be 

discharged 476 

II,  Petition  and  papers 478 

Sec.  2202.  When  petition  may  be  presented. 478 

2203.  Contents  of  petition  ;  schedule 478 

2204.  Affidavit  of  petitioner. 478 

2205.  Notice  to  creditors 479 


XX  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

II.  Petition  and  papers 478 

Sec.  2206.    Id.;  when  service  cannot  be  made. .. .  479 

2207.    Id. ;  when  State  a  creditor 479 

III.  Proceedings,  assignment,  and  discharge 483 

Sec.  2208-   Proceedings  on  presentation  of  petition.  483 

2209.  Adjournment 484 

2210.  Proceedings  on  adjourned  day 484 

2211.  Assignment;  effect  thereof. 484 

2212.  Discharge,  when  to  be  granted 484 

2213.  Petitioner's  property  still  liable 484 

2214.  When  creditor  may  issue  new  execution 

against  person 484 

IV.  Powers  and  duties  of  trustees 491 

Sec.  2215.   Powers  and  duties  of  trustees 491 

CHAPTER   XII. 

CARE  OF  THE  PROPERTY  OF  A  PERSON  CONFINED  FOR  A 

CRIME. 

PAGE. 

Sec.  2219.   When  and  to  what  court  application  to 

be  made 494 

2220.  Who  may  apply 494 

2221.  Creditor  must  relinquish  security 494 

2222.  Contents  of  petition 494 

2223.  Copy    of  sentence    and  affidavit  to  be 

presented 495 

2224.  Proceedings    upon    presentation  of  the 

papers 495 

2225.  Id. ;  on  return  of  order  to  show  cause. .  495 

2226.  Effect  of  order  appointing  trustee 495 

2227.  Removal    of  trustee  ;    appointment    of 

new  trustee 495 

2228.  Prisoner's  property;  how  applied 496 

2229.  Id.;  to  be  delivered  to  him  on  his  dis- 

charge    496 

2230.  Application  of  this   article   to   persons 

heretofore  sentenced 496 

CHAPTER  XIII. 

SUMMARY  PROCEEDING  TO  RECOVER  POSSESSION  OF  LAND. 

Articlk.  page. 

I.   Character  of  proceeding 501 

II.   When  tenant  may  be  removed 502 


analytical  table  of  contents.  xxi 

Article.  page. 

II.  When  tenant  may  be  removed 502 

Sec.  2231.   When   tenant  maybe  recovered 502 

III.  When  person  continuing  in  possession  of  real  property 

may  be  removed 511 

2232.  Person  holding  over  land  sold,  etc.,  may 

be  removed 511 

2233.  Id.  ;    in   case  of  forcible   entry  or  de- 

tainer   512 

rV.  To  what  office  or  court  application  may  be  made 517 

Sec.  2234.   Application;  to  whom   made 517 

V.  Petition  by  person  entitled  to  possession 518 

Sec.  2235.   Petition  by  person  entitled  to  possession  518 

2236.   Notice  to  be  given  in  certain  cases. . . .  519 

Chap.  303,  Laws  of  1882,  sec.  i 519 

2  Revised  Statutes  (7th.  ed),  1126,  sec.  7 519 

Sec.  2237.    Petition   by  neighbor  of  bawdy-house, 

etc 510 

VL  Ptecept,  and  how  served 535 

Sec.  2238.   Precept 535 

2239.  Id.  :  in  New  York  City 535 

2240.  Id.  ;  how  served 535 

2241.  Duty  of  persons  to  whom  copy  of  pre- 

cept is  delivered 536 

2242.  When  precept  to  be  served  on  landlord 

of    bawdy-house,    etc 536 

2243.  Proof  of  service  of  precept 536 

VIL  Answers  and  defences 543 

Sec.  2244.  Answer 543 

2245.   Issues  upon  forcible  entry  or  detainer. .  543 

VIIL  Trial  and  miscellaneous  provisions 547 

Sec.  2246.   In  N.   Y.   district  court,  cause  may  be 

transferred  to  another  court  for  trial.  547 

2247.  Trial 547 

2248.  Adjournment 548 

IX.  Final  order  and  its  effect 552 

Sec.  2249.  Final  order  upon  trial 552 

2250.  Amount  of  costs  ;  how  collected 552 

2264.   Application  of  this  title  ;  e£fect  of  final 

order 552 

X.  Warrant  and  how  proceedings  stayed 555 

Sec.  2251.  Warrant  to  dispossess  defendant 555 

2252,  Execution  of  warrant 555 

2253.  When  warrant  cancels  lease  ;  exception  555 


xxii  ANALYTICAL   TABLE    OF   CONTENTS. 

Article.  page. 

X.   Warrant  and  how  proceedings  stayed 555 

2255.   Undertaking;  how  disposed  of 556 

2265.   How  proceedings  under  this  title  to  be 

stayed 556 

XL  Redemption 562 

Sec.  2256.   Redemption  by  lessee 562 

2257.  Id.  ;  by  creditor  of  lessee 562 

2258.  The  last  two  sections  qualified 563 

2259.  Order  to  be  made  thereupon  ;  liability 

of  person  redeeming 563 

XIL  Appeal  and  restitution 

Sec.  2260.   Appeal 565 

2261.  Effect  of  appeal  limited  in  certain  cases  565 

2262.  Warrants;  how  stayed  on  appeal 565 

2263.  Appellate  court  may  award  restitution  ; 

action  for  damages 566 

CHAPTER  XIV. 

CIVIL  CONTEMPT. 
Article.  page. 
I.   Power  of  the  court.     Civil  and  criminal  contempt  dis- 
tinguished    572 

II.  What  is  civil  contempt ;  how  punishable 578 

Subd.   I.   Civil  contempts  generally 578 

Sec.  2266.   Cases  to  which  this  title  applies 578 

2292.    Punishment  of  misconduct  at  trial  term  579 

14.  Contempts    punishable    civilly 579 

15.  No  punishment  for  non-payment  of  in- 

terlocutory costs 580 

169.   Id. ;   Money  due  upon  a  contract 580 

Subd.  2.   How  judgment  enforced  by  contempt  pro- 
ceedings    595 

Sec.    1241.    When  a  judgment  may  be  enforced  by 

punishment  for  disobeying  it 595 

Subd.  3.  Contempts  in  supplementary  proceedings.  .  598 
Sec.  2457.   Disobedience  to    order;    how  punished  598 
Subd.  4.   Contempt    proceedings    to    enforce    surro- 
gate's decree 59'^ 

Sec.  2555.    Enforcement  of  decree  ;  by  punishment 

for   contempt 598 

III.   When    punished    summarily 602 


ANALYTICAL   TABLE   OF   CONTENTS.  xxiii 

Article.  page. 

III.  When  punished  summarily 602 

Sec.  2267.    When  punishment   may  be  summary.  .  602 
2268.   When    warrant   to    commit   may    issue 

without  notice 602 

IV.  Manner  of  commencing  the  proceeding 605 

Subd.  I.    By  whom  process   issued 605 

Sec.  2271.  Order  or  warrant ;  when  granted  out  of 

court 605 

2272.  Id.;    when    contempt    was    committed 

before  a  referee 606 

Subd.  2.   Order    to     show    cause    and    proceedings 

thereon 607 

Sec.  2269,  Subd.  i.     Order  to  show  cause,  or  war- 
rant  to   attach    offender 607 

2270.   Notice   to    delinquent   officer   to   show 

cause 607 

2273.  Effect  of  order  to  show  cause,  and  of 

warrant   607 

Subd.  3.  Warrant,    when    issued    and    proceedings 

thereon 613 

Sec.  2269,  subd.  2.     order  to  show  cause,  or  war- 
rant to    attach  offender 613 

2278.  When  habeas  corpus  may  issue 613 

2274.  Copy  affidavit,   etc.,  to  be  served  with 

warrant   613 

2275.  Indorsement  upon  warrant 614 

2276.  Warrant ;  how  executed 614 

2277.  Undertaking  to  procure  discharge 614 

2279.  Sheriff  to  file  undertaking  with  return. .  614 

V.  Interrogatories  and  proofs 619 

Sec.  2280.   Interrogatories  and  proofs 619 

VI.  The  punishment 623 

Sec.  2281.   When  and  how  accused  to  be  punished  623 

2282.  Id.;  upon  return  of  habeas  corpus....  623 

2283.  Id.;    upon     return   of    order    to    show 

cause 623 

2284.  Amount  of  fine 623 

2285.  Length  of  imprisonment 624 

2286.  When  court  may  release  offender 624 

VII.   Miscellaneous   provisions 644 

Sec.  2287.   Offender  liable    to    indictment 644 

2288.   Proceedings   when    accused    does    not 

appear 645 


XXIV         ANALYTICAL  TABLE  OF  CONTENTS. 

PAGE. 

VII.   Miscellaneous  provisions 644 

2289.  Undertaking;  when  prosecuted  by  per- 

son aggrieved    645 

2290.  Id. ;    by   attorney-general,    etc 645 

2291.  Sheriff     liable    for    taking     insufficient 

sureties    645 

VIII.   Appeal 648 

CHAPTER   XV. 

CRIMINAL  AND  LEGISLATIVE  CONTEMPTS. 

Article.  page. 

I.   Criminal  contempts 649 

Sec.        8.  Criminal  contempt  defined 649 

9.   Punishment  for  criminal  contempts.  . . .  649 

10.  Such  contempts  in  view  of  court ;  how 

punished,  etc 650 

11.  Requisites  of  commitment 650 

12.  Preceding  sections  limited 650 

13.  Indictment,  if  offence  is  indictable 650 

143.    Penal  Code,  criminal  contempts 650 

853.   Penalty  for  disobedience 655 

171 6.  Return,    etc.,    by   sheriff;    how    com- 
pelled   656 

680.  Penal  Code,  punishable  as   crime  and 

contempt 656 

681.  Penal  Code,  mitigation  of  punishment.  656 
2870.  Criminal  contempt 658 

n.  Legislative  contempts 671 

Sec.  4.  Legislative  law,  contempts  of  either  house.  671 

CHAPTER  XVI. 

PROCEEDINGS  TO  COLLECT  A  FINE. 

PAGE. 

Sec.  2293.  Clerk  to  make  schedule  of  fines  imposed  674 

2294.  Warrant  to  be  issued  by  him 674 

2295.  Id.;  when  delinquent  resides  in  another 

county 674 

2296.  Execution  of  warrant 674 

2297.  Return  thereof. 675 

2298.  Proceedings  if  fine  not  collected 675 

2299.  \\'ho  to  be  included  in  schedule 675 


analytical  table  of  contents.  xxv 

Article,  page. 

2300.  Liability  of  sheriff 675 

2301.  Application  of  this  title 675 

CHAPTER  XVII. 

PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE. 

PAGE. 

Sec.  2302.    Petition  for  production  of  tenant  for  life.  678 

2303.  Contents  of  petition 678 

2304.  Service  of  petition  and  notice 678 

2305.  Proceedings  upon    presentation  of  peti- 

tion   679 

2306.  Serviceof  order  ;  powers,  etc. ,  of  referee.  679 

2307.  Habeas  corpus 679 

2308.  Report  of  referee 679 

2309.  Dismissal  of  petition  when  order  com- 

plied with , 679 

2310.  When  life  tenant  deemed  dead,  and  pe- 

tioner  let  into  possession 680 

231 1.  Commission  to  be  issued  if  life  tenant 

is  without  the  State 680 

2312.  General  provisions  respecting  the  com- 

mission   680 

2313.  Petitioner  to  give  notice  of  its  execution.  680 

2314.  Execution  thereof 680 

2315.  Proceedings  on  return  of  commission. .  681 

2316.  Costs 681 

2317.  Property;   when  restored 681 

2318.  Remedy  of  person    evicted  for  profits, 

etc 681 

2319.  Order  not  conclusive  in  ejectment 681 

CHAPTER  XVIII. 

PROCEEDINGS  FOR  THE  APPOINTMENT  OF  A  COMMITTEE 
OF  THE  PERSON  AND  OF  THE  PROPERTY  OF  A  LU- 
NATIC, IDIOT,  OR  HABITUAL  DRUNKARD.  GENERAL 
POWERS  AND  DUTIES  OF  THE  COMMITTEE. 

Article.  page. 
I.  Jurisdiction  of  supreme  and  county  court,  and  how  ex- 
ercised   686 

Sec.  2320.  Jurisdiction;  concurrent  jurisdiction...  686 

2321.   Duty  of  court  having  jurisdiction 686 


xxvi       analytical  table  of  contents. 

Article.  page. 
I.  Jurisdiction  of  supreme   and  county  court  and  how  ex- 
ercised         686 

2322.   Committee  may  be  appointed 686 

IL  Application  for  committee 695 

Sec.  2323,   Application   for  committee  ;  by  whom 

made 695 

2323a.  Application  when  incompetent  person 
is  in  a  State  institution  ;  petition,  by 
whom  made  ;  contents  and  proceed- 
ings upon  presentation  thereof. 695 

2323b.  Costs  of  proceeding 696 

2336a.  Sections  of  this  title  not  applicable 
when  application  for  committee  is 
made  under  authority  of  this  State. . .       696 

2324.   Duty  of  certain  officers  to  apply 696 

IIL  Petition  and  proceedings  thereon 696 

Sec.  2325.  Contents,  etc.,  of  petition  ;  proceedings 

upon  presentation  thereof. 696 

{326.  When  foreign    committee  may  be   ap- 
pointed         697 

2327.  Order  for  commission,   or  for  trial  by 

jury  in  courts 697 

2328.  Contents  of  commission 698 

2334.  Proceedings  upon  trial  by  jury  in  court.       698 
IV.  Hearing  before  commissioners 7°^ 

Sec.  2329.  Commissioners  to  be  sworn  ;  vacancies, 

how  filled 706 

2330.  Jury  to  be  procured  ;  proceedings  there- 

upon    706 

2331.  Proceedings  upon  hearing 707 

2332.  Return  of  inquisition  and  commission,  707 

2333.  Expenses  of  commission, 707 

2335.  Subject  of  inquiry  in  cases  of  lunacy..  707 
V.   Proceedings  on  return   of  commission 711 

Sec.  2336.   Proceedings  upon  verdict,  or  return  of 

commission 711 

2337.   Security  to  be  given  by  committee.  ...  711 

VI.   Powers  and  duties  of  committee 7^^ 

Sec.  2338.   Compensation  of  committee 716 

2339.  Committee    under    control     of    court ; 

limitation    of   powers 716 

2340.  Committee  of  property    may   maintain 

actions,   etc 7^^ 


analytical  table  of  contents.  xxvu 

Article.  page. 

VI.  Powers  and  duties  of  committee 716 

2341.  Id.  ;  to  file  inventory  and  account. .    ..  716 

2342.  Id.  ;  may  be  compelled  to  file  the  same, 

or  render  an   additional  account....  717 

2343.  Property,  when  to  be  restored 717 

2344.  Id.  ;  disposition  in  case  of  death 718 

CHAPTER  XIX. 

PROCEEDINGS  FOR  THE  DISPOSITION  OF  THE  REAL  PROP- 
ERTY OF  AN  INFANT,  LUNATIC,  IDIOT,  OR  HABITUAL 
DRUNKARD. 

Article.  page. 

I.  Views  of  the  codifiers 73 1 

IL  Action  to  compel  conveyance 732 

Sec.  2345.  Action  to  compel  conveyance. 732 

2346.  Who  may  maintain  action 732 

2347.  Judgment;  effect  thereof 733 

IIL  Application  to  dispose  of  real  property  and  petition....  735 

Sec.  2357.  Certam  sales,  etc.,   prohibited. 735 

2348.  Application  to  dispose  of  real  property  ; 

in  what  cases 735 

2349.  Id.  ;  by  whom 735 

2350.  Contents  of  petition 735 

Rule  55 736 

IV.  Appointment  of  guardian  and  bond 745 

Sec.  2351.   Bond  of  committee  of  lunatic,  etc 745 

2352.  Id.  ;  of  guardian  of  infant.... 746 

2353.  Bond  ;  how  prosecuted 746 

Rule  57 .      74<S 

V.  Referee  to  inquire  into  application  and  order  thereon. .  748 

Sec.  2354.   Reference  to  inquire  into  the  application  748 

Rule  56 749 

Sec.  2355.   Final  order 749 

VI.  Agreement  for  conveyance  ;    conveyance  and  its  effect  757 

Sec.  2356.   Report  of  sale,  etc 757 

2358.   Effect  of  conveyance,  etc 757 

VII.  Proceeds  of  sale  ;  how  distributed . .  763 

Sec.  2359.   Proceeds  of  the  sale  deemed  real  prop- 
erty    763 

2360.  Infant  deemed  a  ward  of  court 763 

2361.  Disposition  of  proceeds  ;  accounting..  'j6^ 


XXviii  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  ^^^^• 

VII.   Proceeds  of  sale  ;  how  distributed 7^3 

2362.  Particular     estates ;    when  included  in 

sale 764 

2363.  Id.  ;  when  belonging  to  infant,  etc 764 

2364.  Debts  of  infant,  etc.,  to  be  paid  equally.  764 

Rule  58 765 

Rule  59 765 

CHAPTER  XX. 

ARBITRATIONS. 
Article.  ^^®^- 

I.   Scope  and  effect  of  the  provisions  on  this  subject 772 

Sec.  2386.  Application  of  this  title 772 

II.   What  controversies  can  be  submitted  to  arbitration  and 

in  what  manner 775 

Subd.  I.   Who    may    arbitrate    and    what     subject- 
matter  776 

Sec.  2365.   When  submission  to  arbitration  cannot 

be  made 77^ 

2366.   What  controversies  may  be  submitted, 

and  how 77^ 

Subd.  2.  The   submission 77^ 

3.   The  arbitrators 78 1 

Sec.  2367.   Appointment    of   additional    arbitrator, 

or  umpire 7^1 

Subd.  4.    Effect  of  agreement   to  arbitrate 784 

III.   Powers  and  duties  of  arbitrators 787 

Sec.  2368.   Time  for  hearing;  adjournment,  etc...  787 

2369.  Arbitrators  to  be  sworn 787 

2370.  Attendance  of  witnesses,  etc 787 

2371.  All  the   arbitrators  to  meet ;  when  ma- 

jority   may    award.      Fees 788 

2372.  Award;  to  be   authenticated,  etc 788 

IV.   Motion  to  confirm,  vacate,  modify,  or  correct  award. .  796 

Sec.  2373.   Motion  to   confirm   award 796 

2374.  Id.;  to   vacate    award 79^ 

2375.  Id. :  to  modify  or  correct  award 797 

2376.  Motions;   when  to  be    made 797 

2377.  Costs    on   vacating    award 797 

V.  Judgment  on  award  and  appeal  therefrom . .  808 

Sec.  2378.   Judgment  on   award  ;    when    and    how 

entered.      Costs 808 


ANALYTICAL  TABLE  OF  CONTENTS.         XXIX 

Article.  page. 

V.  Judgment  on  award  and  appeal  therefrom 808 

2379.  Judgment  roll 808 

2380.  Effect  of  judgment  ;  how  enforced 808 

2381.  Appeal  809 

VI.  Revocation  of  award,  or  death  of  party 810 

Sec.  2383.   Revocation  of  submission 810 

2384.  Liability  of  party  who  revokes 810 

2385.  Limitation  of  recovery  against  him 810 

2382.  Effect  of  party's  death,  lunacy,  etc.,  pro- 

ceedings thereupon 810 

CHAPTER  XXI. 

FORECLOSURE  BY  ADVERTISEMENT. 

Article.  i'age. 

L  When  statutory  remedy  may  be  enforced 814 

Sec.  2387.   When  mortgage  may  be  foreclosed 814 

IL   Notice  of  sale  ;  contents,  filing  and  service 817 

Sec.  2391.  Contents  of  notice  of  sale 817 

2388.  Notice  of  sale  ;  how  given 817 

2389.  Id. ;  how  served 818 

2390.  Duty  of  county  clerk 818 

IIL  Sale  ;  its  effect  and  record  thereof 823 

2392.  Sale;  how  postponed 823 

2393.  Id. ;  how  conducted 823 

2394.  Mortgagee,  etc.,  may  purchase 824 

2395.  Effect  of  sale 824 

2396.  Affidavit  of  sale,  and  of  posting,  serving, 

etc. ,  notices 824 

2397.  When  one  affidavit  suffices  printed  no- 

tice to  be  annexed 824 

2398.  Affidavits  may  be  filed  and  recorded. .  825 

2399.  Note  upon  record  of  mortgage 825 

2400.  Deed   not  necessary.     When  affidavits 

not    necessary ;    but    purchaser  may 

require  them 825 

IV.  Costs ' 834 

Sec.  2401.  Costs  allowed 834 

2402.  Expenses    allowed 834 

2403.  Taxation   thereof 835 

V.  Surplus  money  and  proceedings  with  regard  thereto  . .  837 

Sec.  2404.   Surplus  money  to  be  paid  into  Supreme 

Court 837 


XXX  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

V.  Surplus  money  and  proceedings  with  regard  thereto. . .  837 

2405.  Claimant  of  surplus  money  to  file  peti- 

tion    837 

2406.  Application  for  surplus  money 837 

2407.  Order  for  distribution 837 

2408.  Limitation  of  last  four  sections 837 

2798.  Surplus  money  on  foreclosure  and  other 

sales  ;   when  paid  to  surrogate 838 

2799.  Id. ;   how  distributed 838 

VI.  Loan  commissioners'  mortgages 841 

Sec.  2409.   Application  of  this  title  to  mortgages  to 

the  State 841 

CHAPTER    XXII. 

PROCEEDINGS  TO  CHANGE  THE  NAME  OF  AN  INDIVIDUAL 

OR  CORPORATION. 

Article.  page. 

I.  The  petition  and  notice 845 

Sec.  24 10.   Petition  by  individual 845 

2411.  Petition  by  corporation 845 

2412.  Contents  of  petition 845 

2413.  Notice  of  presentation  of  petition 846 

II.  The  order  and  when  to  take  effect 850 

Sec.  24 14.   Order 850 

2415.   When  change  to  take  effect 851 

III.   Miscellaneous  regulations 853 

Sec.  2416.   Substitution  of  new    name  in  pending 

action  or  proceeding 853 

2417.   Reports  by  clerks  to  State  officers 853 

CHAPTER    XXIII. 

PROCEEDINGS   FOR  THE  VOLUNTARY  DISSOLUTION  OF  A 

CORPORATION. 

Article.  page. 

I.  When  dissolution  can  be  had 854 

Sec.  2419.   When  a  majority  of  directors,  etc.,  may 

petition  for  dissolution 854 

2420.    Id.;  when  they  are  equally  divided..  . .  .  855 

II.   Petition,  schedule,  and  affidavit 862 

Sec.  2421.   Contents  of  petition 862 

2422.   Affidavit  to   be  annexed 862 


ANALYTICAL  TABLE  OF  CONTENTS.  XXXI 

Article.  page. 

III.  Presentation   of  petition  and  order  thereon ;  temporary- 

receiver  and  injunction oji 

Subd.  I.   Order  to  show  cause 871 

Sec.  2423.   Presentation  of  petition,  etc. ;  order. .. .  871 

2424.  Order  to  be  published 872 

2425.  Id. ;  to  be  served  on  creditors  and  stock- 

holders    872 

IV.  Hearing  and  proceedings  thereon 883 

Sec.  2426.   Hearing  883 

2427.  Id. ;  original  papers  may  be  used 883 

2428.  Application  for  final  order 883 

V.  Final  order 886 

Subd.  I.   When  final  order  granted 886 

Sec.  2429.   Final  order 886 

Subd.  2.   Receiver  ;  his  powers  and  duties 892 

VI.   Miscellaneous  provisions  and  exceptions 912 

Sec.  2430.   Certain  sales,  etc.,  void 912 

2431.  Certain  corporations  excepted  from  this 

title 912 

CHAPTER  XXIV. 

PROCEEDINGS  SUPPLEMENTARY  TO  AN  EXECUTION 

AGAINST  PROPERTY. 

Article.  page. 

I.   Remedies  under  this  title,  and  when  granted 915 

Sec.  2433.   Nature  of  the  remedies 915 

2432.   The  different  remedies  under  this  title.  915 

2458.  Upon    what  judgment    and   to    what 

county    the    execution     must    have 

issued 9^^ 

2461.  Proceedings  wherejudgment  is  against 

joint  debtors 916 

II.   Jurisdiction 9^9 

Sec.  2434.    What   judge    may   entertain    the    pro- 
ceedings    919 

2459.  -^'^  what    county  judgment  debtor,  his 

bailee,    etc.,  must   attend 920 

2462.  Proceedings    commenced    before   one 

judge  may  be   continued  before  an- 
other   920 

III.   Order  to  examine  debtor  after  return  of  execution 924 


XXXli  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

III.  Order  to  examine  debtor  after  return  of  execution.. . .  924 

Subd.  I.   Who  entitled  to  the  remedy  and  against 

whom 924 

Sec  2435.   Order  to  examine  debtor  after  return 

of  execution 924 

Subd.  2.   Return  of  the  execution 926 

3.  The  affidavit 930 

4.  The  order  and  proceedings  thereon 934 

IV.  Order  to  examine  debtor  before  return  of  execution. .  938 

Sec.  2436.   Order  to  examine  debtor  before  return 

of  execution 938 

V,  Order  to  examine  person  having  property  of  judgment 

debtor 939 

Sec.  2441.   Order  to  examine  person  having  prop- 
erty, etc.,  of  judgment  debtor 939 

VI.   Injunction  order ;  when  granted 946 

Sec.  2451.  Judge    may   enjoin   transfer,    etc.,    of 

property 946 

VII.  Service  of  order,  injunction,  or  warrant 947 

Sec.  2452.   Mode  of  service  of  certain  orders 947 

2453.   Service  of  a  warrant 948 

VIII.  Reference  when  and  how  granted  and  proceedings 

thereon 948 

Sec.  2442.  Either  order  may  require  attendance 

before  a  referee 948 

2443.   Reference  may  be  ordered  at  any  time  949 

2445.  Referee  to  be  sworn 949 

IX.  Hearing  before  judge  or  referee 95 1 

Sec.  2444.   Proceedings    upon    examination ;    ad- 
journment    951 

X.  When  warrant  may  be  issued 955 

Sec.  2437.   Warrant  of  arrest  instead  of  order 955 

2438.  Id.  ;  after  the  order  has  been  made. . .  955 

2439.  Warrant ;  how  vacated,  etc 955 

2440.  Undertaking  may  be  required,  etc....  956 
XI.   Payment  by  debtor  to  sheriff,  and  proceedings  thereon  958 

Sec.  2446.   Order  permitting  person    indebted  to 

pay  debt  to  sheriff 958 

2447.  Order  requiring  delivery  of  money  or 

property  to  sheriff  or  receiver 958 

2448.  Duty  of  the  sheriff 959 

2449.  How   money   or   property    applied   to 

pay  the  judgment 959 


ANALYTICAL  TABLE  OF  CONTENTS.        XXXUl 

Article.  page. 

XL   Payment  for  debtor  to  sheriff,  and  proceedings  thereon  958 
2450.   Balance   to   be   paid   or   delivered   to 

judgment  debtor,  etc 959 

XII.  Dismissal  or  discontinuance  of  proceedings 967 

Sec.  2454.    How  proceedings  discontinued  or  dis- 
missed    9"7 

XIII.  Costs 969 

Sec.  2455.   Costs  to  judgment  creditor 969 

2456.   Id.  ;  to  judgment  debtor,  etc 969 

XIV.  Contempt  in  supplementary  proceedings 97 1 

Sec.  2457.    Disobedience  to  order  ;  how  punished  971 

XV.  When  article  does  not  apply •  9^° 

Sec.  2463.   Cases  where  this  chapter  is  not  appli- 
cable ;    what    property    cannot    be 

reached 9^° 

XVI.  Witness  not  excused  from  answering 9^4 

Sec.  2460.   No  person  excused  from  answering  on 

the  ground  of  fraud 9^4- 

XVII.   How  orders  vacated,  modified,  or  reviewed 985 

Sec.  2433.   Nature    of    the    remedies,    review    of 

orders 9°5 

XVIII.   Receiver  in  supplementary  proceedings 9^7 

Subd.  I.   Appointment  of  receiver 9^7 

Sec.  2464.   When   and  how  receiver  may  be  ap- 
pointed    987 

2465.  Notice  to  other  creditors 9^8 

2466.  Only  one    receiver   to    be    appointed. 

Former    receivership     may    be    ex- 
tended   988 

2467.  Order  to  be  filed  and  recorded 988 

2470.  County  clerk   to  record   orders,    etc.  ; 

penalty  for  neglect 9^^ 

Subd.  2.  Vesting  of  title  in  receiver 995 

Sec.  2468.   When  property  is  vested  in  receiver..  995 
2469.    How  receiver's  title  to  personal  prop- 
erty extended  by  relation 995 

Rule  78 996 

Subd.  3.   Receiver  subject  to  control  of  court 1006 

Sec.  2471.   Receiver  to  be  subject  to  control   of 

court -  •  •  •  1006 


XXxiv         ANALYTICAL  TABLE  OF  CONTENTS. 

CHAPTER  XXV. 

PROCEEDINGS  TO  COMPEL  THE  DELIVERY  OF  BOOKS  TO 
A  PUBLIC  OFFICER. 

PAGE. 

Sec.  2471a.   Delivery  of  books  and  papers,  how  en- 
forced   1009 

CHAPTER  XXVI. 

PROCEEDINGS  FOR  THE  CONDEMNATION  OF  REAL 

PROPERTY. 

Article.  page. 

I.   Eminent  domain  and  how  exercised 102 1 

Subd.  I.    Right  of  eminent  domain ....  102 1 

2.   Constitutional  and  statutory  provisions  reg- 
ulating the  right 1027 

Sec.  7.  Art.  i.   Constitution 1027 

II.  Title,  definitions,  and  scope  of  act 1033 

Sec.  3357.   Title 1033 

3358,  Definitions 1033 

3359.  Proceedings  to  be  taken  as  prescribed 

in  this  title 1033 

IIL  Petition,  notice,  and  service  thereof 104 1 

Sec.  3360.   Petition  ;  what  to  contain 104 1 

3361.  Notice  to  be  annexed  to  petition;  ser- 

vice of 1042 

3362.  Service  of  petition  and  notice 1042 

3366.  Verification  of  petition  or  answer 1042 

IV.  Appearance  and  answer 1054 

Sec.  3363.  Appearance  of  infant,  idiot,  lunatic,  or 

habitual  drunkard 1054 

3364.  Appearance -•  io54 

3365.  Answer;  what  to  contain 1054 

V.  Trial  and  judgment 1058 

Sec.  3367.  Trial  of  issues 1058 

3369.   Judgment  ;  costs  when  to   defendant ; 

commissioners 105^ 

VI.  The  commissioners  and  the  award 1062 

Subd.  I.   The  hearing 1062 

Sec.  3370.   Duties  and  powers  of  commissioners...  10^2 

Subd.  2.   The  award 1073 

VII.   Final  order  and  costs  thereon 1084 

Subd.  I.   Final  order,  how  obtained,  and  contents.. . .  1084 


ANALYTICAL  TABLE  OF  CONTENTS.         XXXV 

Article.  page. 

VII.   Final  order  and  costs  thereon 1084 

Sec.  3371.   Confirmation    or  setting   aside   report  ; 


deposit,  when  payable 

Subd.  2.   Costs  on  final  order 

Sec.  3372.   Offer   to   purchase;    costs;    additional 

allowance 

Subd.  3.   Effect  of  final  order,  and  how  enforced. .  . . 
Sec.  3373.   Judgment,  how  enforced,  delivery  pos- 
session   of  premises,    when    writ    of 

assistance  to  issue 

VIII.   Stay  of  proceedings  and   appeals 

Sec.  3375.   Appeal  from  final  orders ;  stay 

3376.  Appeal  from  judgment  by  plaintiff. .... 

3377.  When   appellate  division  may  direct  a 

new  appraisal 

IX.   Possession  of  property  and  distribution  of  fund 

Sec.  3379.   Party  in  possession  may  stay  on  giving 
authority 

3380.  Temporary    possession    pending    pro- 

ceedings   

3381.  Notice  of  pendency  of  action  to  be  filed. 

3378.  Conflicting  claimants 

X.  Miscellaneous  provisions  and  exceptions 

Sec.  3368.  Certain  provisions  applicable 

3382.  Power    of    court    to    make    necessary 

orders 

3383.  Repealing  clause  ;  limitations 

3374.   Abandonment    and   discontinuance    of 

proceeding 

3384.  When  act  takes  effect 


084. 
097 

097 
102 


02 
04 
04 
04 

04 
13 

13 

13 

13 
13 
15 
15 

15 

16 

16 
16 


CHAPTER  XXVII. 

PROCEEDINGS    FOR   SALE   OF  CORPORATE  REAL  ESTATE. 

Article.  page. 

I.  What  corporations  are  affected  by  this  title 1 1 18 

Sec.  3390.   Proceedings  by  corporations,  etc.,  to  be 

pursuant  to  the  provisions  of  this  title  1 1 18 

II.   Petition  and  contents 1128 

Sec.  3391.    Petition  and  contents 11 28 

III.   Hearing;  order;  when  notice  required    1138 

Sec.  3392.    Hearing  of  application  ;    notice  ;  refer- 
ence to  take  proofs 1138 


XXXvi        ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

III.  Hearing;  order;   when  notice  required 1138 

Sec.  3393.   Order  ;  when   application  for,  may  be 

opposed 1 138 

3394.  Insolvent   corporation    or   association ; 

notice  to  creditors 1 138 

3395.  Service  of  notices 1138 

IV.  Power  of  court  and  when  act  took  effect 1 145 

Sec.  3396.   Power    of    court    to    make    necessary- 
orders  1 145 

3397.   When  act  takes  effect 1 145 

CHAPTER  XXVIII. 

ADMISSION  OF  ATTORNEYS. 

Article.  page. 

I.   Features  of  the  proceeding 1 146 

II.  Code  provisions  relative  to  admission  of  attorneys 1148 

Sec.  56.   Examination  and  admission  of  attorneys  1148 

57.  Rules,   how   changed 1 148 

58.  Exemptions  to  graduates  of  certain  law 

schools 1 148 

59.  Attorney's  oath  of  office  and  certificate  of 

admission 1 149 

193.   Court  may  make  rules 1 149 

III.  Rules  of  Court  of  Appeals  and  Supreme  Court  on  the 

subject 1149 

Rule  I.  Admission  and  license 1149 

2.  Admission    after   practising   three   years    in 

another  State  or  country,  etc 1149 

3.  Prerequisites  to  admission  on  examinations     1149 

4.  Prerequisites  to  examination  by  State  board 

of  law  examiners  ;  periods  of  law 
study  ;  admission  in  another  State  or 
country ii^o 

5.  Study  of  law  ;  regent's  examination  and  cer- 

tificate ;  vacations ;  clerkship  certifi- 
cate        1 1 50 

6.  Proof   of   compliance    with    preliminary   re- 

quirements        1 1 5  * 

7.  Filing   certificates    nu7ic  pro    tunc;    certain 

regents'  certificates  validated 11 52 

8.  State  board  of  law  examiners 1152 

9.  Times  and  places  of  holding  examinations — 

Department 1152 


ANALYTICAL  TABLE   OF   CONTENTS.  XXXVll 

Article.  ^^^^• 

III.   Rules  of  Court  of  Appeals  and  Supreme  Court  on  the 

subject "49 

Rule  lo "52 

I.  Supreme  Court,  applicants  for  admission  as 

attorneys 1 1 53 

IV.  Rules  adopted  by  board  of  law  examiners 1 1 53 

Rule  I "53 

2 "53 

3 1153 

4^    "53 

5 "54 

6.    "54 

CHAPTER  XXIX. 

COURT  OF  CLAIMS. 
Article.  ''^'^^• 

I.  Code  provisions ^^55 

Sec.    263.   Court  of  claims "55 

264.  Jurisdiction "55 

265.  Rules  and  procedure "5^ 

266.  Officers "56 

267.  Seal  of  court   "5^ 

268.  Sessions,  duty  of  sheriff "  5^ 

269.  Judgments  "  5^ 

270.  Duty  of  attorney-general  and  superintend- 

ent of  public  works "57 

271.  Record  of  proceedings  ;  report n  57 

272.  Expense  of  procuring  testimony  on  com- 

mission    "57 

273.  Annual  report  to  comptroller "57 

274.  Costs  not  to  be  taxed "57 

275.  Appeals ^^57 

276.  Time  and  manner  of  taking  appeal 1157 

277.  Case  on  appeal ^  ^  57 

278.  Preference  on  appeals "  5^ 

279.  Salary  of  judge  of  court  of  claims 1158 

280.  Salaries  of  officers  of  court  of  claims 115^ 

II.  Rules  of  practice "5^ 

Rule  I.    Filing    claims " 5^ 

2.  Form  and  contents 1^5° 

3.  Pleadings "59 

4.  Counterclaims ^  ^  59 


XXXviii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 


II.  Rules  of  practice 

Rule    5.   Pleadings  must  be  verified 

6.  Numbering  claims 

7.  Copies  of  claims 

8.  Amendments 

9.  Dismissing  claims 

10.  Hearing  and   notice   thereof 

1 1.  Trial  calendar 

12.  Dismissing  for  want  of  prosecution 

13.  Claims  passed 

14.  Infant  claimant 

15.  Discontinuance 

16.  Commission 

17.  Deposition  

18.  Subpoenas  and  attachments 

19.  Substitution  of   attorney 

20.  Inspection  of  papers 

21.  Arguments.      Briefs 

22.  Judgments   

23.  Judgment  roll 

24.  Appeals.      How  taken 

25.  Case  on  appeal 

26.  Filing  case 

27.  When  case  is  not  filed 

28.  Order  and  judgments  upon  rgw?'//2'/Mr.     Costs 

29.  Papers   folioed 

30.  Time  may  be  extended   

31.  Notice,  service  of 

32.  Rules  of  Supreme  Court 

33 

III.   Precedents  for  notice  of  claim 

IV.   Procedure  and  appeals 

CHAPTER  XXX. 


158 
159 
159 
159 
160 
160 
160 
160 
160 
160 
161 
161 
161 
161 
161 
161 
161 
161 
162 
162 
162 
162 
162 
163 
163 
163 
163 
163 
163 
163 
163 
170 


DISCHARGE  OF  MORTGAGES  OF  RECORD  IN  CERTAIN 

CASES. 

Laws  1862,  chap.  365,  as  amended  by  Laws  1898,  chap.  174. 

PAGE. 

Sec.  I.  Discharge,  how  obtained  by  petition,  etc.; 
proviso  as  to  mortgages  assigned  where 
assignment  is  not   acknowledged 1 174 


ANALYTICAL  TABLE  OF  CONTENTS.        XXXIX 

Article.  p^«^- 

Sec.  2.   Where  presented i  ^  74 

3.  Order  to  show  cause  ;  publication  and  ser- 

vice thereof i  ^75 

4.  Commission  to  take    testimony  ;  order  of 

court 1 175 

5.  Duty  of  county  clerk ii75 


CHAPTER  XXXI. 

RESIGNATION  OR  REMOVAL  OF   TRUSTEE,  AND  APPOINT- 
MENT OF  SUCCESSOR. 

Real  Property  Law,  sees.   91,  92.     Personal  property  Law,  sec.  8. 

PAGE. 

Sec.  91.  Trust  estate  not  to  descend 1182 

92.   Resignation  or  removal  of  trustee,  and  ap- 
pointment of  successor 1182 

8.  When  trusts  vests  in  Supreme  Court 1182 


CHAPTER   XXXII. 

PROCEEDINGS  UNDER  ELECTION  LAW. 

Article.  p^^^- 

I.   Special  proceedings  under  Election  Law  considered 1196 

II.   Adding  and  erasing  names  on  register ii97 

Sec.  31.   Adding  and  erasing  names  on  register 1197 

in.   Party  nominations  ;  objections  to  certificates  of  nomina- 
tion   ^202 

Sec.  56.   Party   nominations ;    choice   of   emblems 

for  ballot ■ ^202 

65.   Objections  to  certificates  of  nomination..  1202 

IV.   Judicial  investigation  of  ballots.. 12 10 

Sec.  1 14.   Judicial  investigation  of  ballots 1 2 10 

V.  Correction  in  State  or  county  board  of  canvassers'  state- 
ment    ^22^ 

Sec.  133.  Correction  m  State  or  county  board  of 

canvassers'  statements 1221 

134.  Proceedings  of  State  board  of  canvassers 

upon  corrected  statements 1221 


Xl  ANALYTICAL  TABLE  OF  CONTENTS. 

CHAPTER  XXXIII. 

PROCEEDINGS  UNDER  TAX  LAW. 

Article.  page. 

I.   Certiorari  to  review  proceedings  of  assessors 1234 

Subd.  I.   Nature    of    the    proceedings    and    parties 

thereto 1 234 

2.   The  petition 1 237 

Sec.  250.   Contents  of  petition 1237 

Subd.  3.  The  writ , 1250 

Sec.  251.  Allowance  of  writ  of  certiorari 1250 

Subd.  4.  The  return  and  proceedings  thereon 1255 

Sec.  252.    Return  to  writ 1255 

253.   Proceedings  upon  return 1255 

Subd.  5.   Costs 1 274 

Sec.  254.  Costs 1 274 

Subd.  6.  Appeals 1275 

Sec.  255.   Appeals 1275 

Subd.  7.   Refund  of  tax 1 277 

Sec.  256.  Refund  of  tax  paid  upon    illegal,    erro- 
neous, or  unequal  assessment 1277 

II.  Miscellaneous  provisions  in  relation  to  enforcement  of 

Tax  Law 1278 

Subd.  I.   Application  to  county  court   to   apportion 

tax 1278 

Sec.  257.   When  county  court  may  apportion  tax..  1278 
Subd.  2.  Application  to  county  court  where  taxpayer 

has  removed  from  county 1278 

Sec.  258.   Application   to  county  court  where  tax- 
payer has  removed  from  county 1278 

Subd.  3.     Supplementary     proceedings     to       collect 

tax 1278 

Sec.  259.  Supplementary    proceedings    to    collect 

tax 1279 

Subd.  4.   Power  of  county  court  when  collector  fails 

to  pay  over 1 280 

Sec.  260.    Power  of   county  court    when  collector 

fails  to  pay  over 1280 

261.    Payment  of  moneys  collected 1281 

Subd.  5.   Application  to  county  court  to  refund  tax..  1281 
Sec.  16.   County   law.      Correction   of  assessments 
and  returning  and  refunding  of  illegal 

taxes 1 28 1 


ANALYTICAL   TABLE   OF   CONTENTS.  xli 

Article.  page. 
III.   Review  by  certiorari  of  determination  of  comptroller  on 

revision  of  Corporation  Tax 1291 

Sec.  195.    Revision  and  readjustment  of  accounts 

by  comptroller 1291 

196.   Review  of  determination  of  comptroller 

by  certiorari. 1 292 

CHAPTER    XXXIV. 

NATIONAL   BANKRUPTCY  LAWS. 

Article.  page. 

I.   Relation  of  the  act  to  State  Laws 1308 

II.  Citation  from  Federal  Act 13 10 

Sec.   3.   Acts  of  Bankruptcy 13 10 

4.  Who  may  become  bankrupts 13 11 

5.  Partners 1311 

70.  Title  to  property 13 11 

CHAPTER  XXXV. 

GENERAL   ASSIGNMENTS, 
Chapter  466,   Laws   1877. 

Article.  page. 

I.   Common  law  and  statutory  regulations 1315 

Sec.  I.   Title 1315 

II.   Requisites  of  assignment 13 18 

Subd.  I.   Who  may  assign  and  to  whom 1318 

Sec.  2.   To  be  in  writing  ;  contents  ;  acknowledg- 
ment;  recording;   assent  of  assignee..  2318 
48.   Prohibited    transfers    to   officers   or  stock- 
holders    1323 

Subd.  2.   Form  and  contents  of  assignment 1327 

3.  Validity  and  effect  of  assignment '^ZZ^ 

4.  Interpretation  and  construction  of  assign- 

ment    1356 

III.  Preferences 1365 

Sec.  30.   Other  preferences  limited « 1365 

29.   Wages  of  employes  preferred  claim 1365 

IV.  Jurisdiction  of  courts 1375 

Sec.  25.   Jurisdiction  of  courts 1375 

Chap.  380,  Laws  of  1 885 1376 


xlii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

V.   Inventory 1378 

Sec.  3.    Inventory  or  schedule;  when  and  how  to 
be   made  by  debtor   or  assignee,  or  on 

failure  of  assignee  ;  inspection  of  books  1378 

Part  of  Sec.  6.   Correction,  etc.,  of  schedules 1379 

VI.   Bond  of  assignee  and  further  security 1386 

Sec.  5.    Bond  of  assignee 1386 

7.  Further  bond 1387 

8.  Neglect  to  file  bond 1387 

9.  Action  on  bond  ;  application  of  proceeds . .  1387 
VII.  Advertising  for  claims 1392 

Sec.  4-   Advertisement  for  claims 1392 

VIII.   Removal  or  death  of  assignee 1395 

Sec.   6.   Removal  of  assignee  ;  appointment  of  suc- 
cessor ;  correction,  etc.,  of  schedules. . .  1395 

7.  Further  bond 1395 

8.  Neglect  to  file  bond 1 395 

9.  Action  on  bond  ;  application  of  proceeds  1395 
10.   Death  of  assignee 1 395 

IX.  Interlocutory  proceedings 1400 

Sec.  21.  Examination  at  other  times  ;  incriminating 

answers 1400 

23.  Sale,     compromise,     or    compounding    of 

claims 1401 

26.  Trial  of  disputed  claims ;  commissions  of 

assignee 1401 

X.   Miscellaneous  matters  of  practice 1406 

Sec.  22.   Effect  of  orders  and  decrees  ;  court  always 

open,  etc.  ;  duty  and  fees  of  clerk 1406 

24.  Proceedings  in  New  York  City 1407 

XI.   Powers  and  duties  of  assignees 1407 

XII.   Proceedings  to  obtain  an  accounting. 14 13 

Sec.  II.  Accounting 14 13 

12.  Party  cited 1413 

13.  General   citation  ;  how,  and  on  whom  to 

be  served ....    1 4 1 3 

14.  Time  of  service 14 1 3 

1 5.  Service  by  publication i4 1 3 

16.  Personal  service  without  the  State 14 14 

17.  Service  on   minors,  etc 1414 

18.  On  joint  creditors 14 14 

19.  Appearance  without  service   14  H 

XIII.   The  accountiu}/ and  distribution 14 18 


ANALYTICAL   TABLE   OF   CONTENTS.  xHii 

Article.  page. 

XIII.   The  accounting  and  distribution 141 8 

Subd.  I.   The  account 1418 

Sec.  20.    Power   of   the  county  court  on    account- 
ing   1418 

Subd.  2.   Costs  and  commissions 1433 

Sec.  26.  Trial  ;  fees  and  costs  ;  commission   of  as- 
signee    1433 

Subd.  3.  The  decree  and  discharge  therefrom 1440 

XIV.  Rules  of  first  department  relative  to  insolvent  assign- 
ments   1442 

Rule  6 1443 


CHAPTER  XXXVI. 

INVESTIGATION  OF  EXPENDITURES  OF  TOWNS  AND 
VILLAGES. 

PAGE. 

Sec.  3.  General  Municipal  Law 1445 


CHAPTER  XXXVII. 

ADOPTION    OF    CHILDREN. 
Domestic  Relations  Law.     Sees.  60  to  68. 

PAGE. 

Sec.  60.  Definitions  ;  effect  of  article 1449 

61.  Whose  consent  necessary 1449 

62.  Requisites  of  voluntary  doctrine. 1449 

63.  Order 1450 

64.  Effect  of  adoption 1450 

65.  Adoption  from  charitable  institutions. .. .  1450 

66.  Abrogation  of  voluntary  adoption 1451 

67.  Application  in  behalf  of  the  child  for  abro- 

gation of  an  adoption  from  a  charitable 
institution 1451 

68.  Application  of  the  foster  parent  for  the 

abrogation  of  such  an  adoption.  •••....     1452 


xliv  ANALYTICAL   TABLE   OF   CONTENTS 

CHAPTER  XXXVIII. 

PROCEEDINGS  TO  COMPEL  AN  ATTORNEY  TO  PAY 

OVER  MONEYS. 

Article.  page. 

I.   General  powers  of  the  court 1463 

II.  Who  may  bring  the  proceeding ;  relation  of  attorney 

and  client  must  exist 1465 

III.   Procedure  ;  claim  of  lien  ;  reference,  etc 1469 

CHAPTER  XXXIX. 
DISBARMENT  OF  ATTORNEYS. 

Article.  page. 

I.  Power  of  the  court  ;  when  attorneys  maybe  disbarred.  1479 
Sec  56    (in  part).     Examination  and  admission  of 

attorneys 1479 

67.  Suspension  from  practice. .. , 1479 

68.  Must  be  on  notice 1480 

69.  Removal  or  suspension,  how  to  operate..  1380 

73.  Attorney  not  to  buy  claim 1480 

74.  Certain  loans  prohibited 1480 

75.  Penalty 1480 

76.  Limitation  of  preceding  sections 1480 

77.  Same  rule  when  party  prosecutes  in  person  148 1 

78.  Partner  of  district-attorney,   etc.,  not   to 

defend  prosecutions 148 1 

79.  Attorney  not  to  defend  when  he  has  been 

public  prosecutor 1481 

80.  Penalty 1481 

IL  Practice,  punishment,  costs,  appeals i486 


SPECIAL  PROCEEDINGS 


UNDER   THE 


Code   of   Civil   Procedure 


Statutes. 


CHAPTER  I. 

SPECIAL  PROCEEDINGS    GENERALLY  CONSIDERED. 

PAGE. 

Article  i.    Special  proceedings    defined.     §§  ^^^t„  3334,   3343? 

sub.  20 2 

2.  General   provisions   of  the  Code  on  the  subject  col- 

lated. §§  340,  sub.  4,  342,  348,  25,  26,  37,  44, 
52,  53>  414,  433>  716,  815,  825,  860,  867,  1688, 
1777,  1814,  1900,  2516,  2517,  2861,  2868,  3150, 
3152,3316,   3352 6 

3.  Some  special  proceedings  enumerated 14 

4.  Costs   in   special   proceedings.     §§   3240,    3258,  3259, 

3279 20 

5.  Appeals.  §§  1356,  1357,  1358,  1359,  1360,  1361, 

190,  191 29 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SEC.  ART.    PAGE. 

25.  No  discontinuance  by  reason  of  vacancy,  etc 2  7 

26.  In  New  York,  one  judge  may  continue  proceedings   commenced  be- 

fore another 2  7 

37.  Causes  tried  elsewhere  than  at  court-house 2  8 

44.  No  action  or  special  proceeding  abated,  etc.,  by  failure  or  adjourn- 
ment of  court .  .    2  8 

52.  Substitution  of  one  officer  for  another  in  special  proceedings 2  8 

53.  Proceedings  before  substituted  officer 2  S 

I 


2  SPECIAL   PROCEEDINGS   GENERALLY    CONSIDERED. 


Art.    I.     Special  Proceedings  Defined. 


SBC. 


ART.    PAGE. 

190.  Tke  jurisdiction  of  the  Court  of  Appeals  in  civil  actions 5  30- 

191.  Limitations,  exceptions,  and  conditions 5  30 

340.  Sub.  4.     Jurisdiction -  6 

342.  Action,  etc.,  wherein  county  judge  is  incapable  to  act 2  7 

348.  When  jurisdiction,  etc.,  co-extensive  with  Supreme  Court 2  7 

414.  Cases  to  which  this  chapter  applies 2  10 

433.  Service  of  process,  etc.,  to  commence  a  special  proceeding 2  11 

716.  Certain  receivers  may  hold  real  property 2  ii 

815.  Bonds,  etc.,  not  affected  by  change  of  parties 2  il 

825.  Papers  in  special  proceedings ;  where  to  be  filed 2  11 

860.  Witness  exempt  from  arrest 2  11 

867.   Production,  etc.,  of  book  of  account 2  11 

1 356.  Appeal  from  order  made  in  the  same  court 5  29 

1357.  Id.;  when  made  by  another  court  or  judge , 5  29 

1358.  Preceding  order  may  be  reviewed 5  -9 

1 359.  Limitation  of  time  to  appeal 5  -9 

1360.  Stay  of  proceedings  ;  hearing  of  appeal ;  decision  thereupon 5  29 

1361.  This  title  qualified.     Application  of  provisions  relating  to  actions.. .  5  30 

1688.   When  special  proceeding  to  recover  real  property  not  allowed 2  12 

1777.  Misnomer,  when  waived 2  12 

1814.  Action,  etc.,  by  and  against  executor,  etc.,  to  be  brought  in  repre- 
sentative capacity -  12 

T900.  Action  for  suing,  etc.,  in  name  of  another  made  also  a  misdemeanor.  2  12 

2516.  Proceedings   to  be  commenced  by  citation .  2  12 

2517.  Proceedings  within  the  statute  of  limitations 2  13 

2861.  Justice's  jurisdiction  must  be  specially  conferred  by  law 2  13 

2868.  Justices  to  hold  courts  ;  general  powers 2  13 

3150.  Transfer  of  action  when  justice's  term  expires,  etc 2  13 

3152.  Proceedmgs  upon  transfer 2  13 

3240.  Costs  in  a  special  proceeding 4  20 

3258.  When  defendant  entitled  to  increased  costs 4  20 

3259.  Increased  disbursements  not  allowed 4  20 

3279.  This  title  applies  to  special  proceedings 4  20 

3316.  Jurors'  fees  in  special  proceedings 2  13 

3333.  Definition  of   "  action." i  2 

3334.  Id. ;  "  special  proceeding." i  3 

3343.  Sub.  20.     Miscellaneous  general  definitions  and  rules  of  construc- 
tion          I  3 

3352.  Effect  of  this  act  upon   proceedings  taken,  or  rights  accrued,  etc., 

under  former  statutes 2  14 

ARTICLE  I. 

Special  Proceedings  Defined.    §§  3333,  3334,  3343?  sub.  20. 

§  3333.  Definition  of  "action." 

The  word  "action,"  as  used  in  the  new  Revision  of  the  Statutes,  when  applied  to 

judicial  proceedings,  signifies  an  ordinary  prosecution,  in  a  court  of  justice,  by  a 

party  against  another  party,  for  the  enforcement  or  protection  of  a  right,  the  redress- 
or  prevention  of  a  wrong,  or  the  punishment  of  a  public  offence. 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 


Art.    I.     Special  Proceedings  Defined. 


§  3334.  Id. ;  "  special  proceeding." 

Every  other  prosecution  by  a  party,  for  either  of  the  purposes  specified  in  the  last 
section,  is  a  special  proceeding. 

§  3343.  Miscellaneous  general  definitions  and  rules  of  construc- 
tion. 

In  construing  this  act,  the  following  rules  must  be  observed,  except  where  a  con- 
trary intent  is  expressly  declared  in  the  provision  to  be  construed,  or  plainly  apparent 
from  the  context  thereof: 

Sub.  20.  The  word,  "action,"  refers  to  a  civil  action;  the  word  "  judgment,"  to 
a  judgment  in  such  an  action;  the  term,  "special  proceeding,"  to  a  civil  special  pro- 
ceeding; the  word,  "order,"  to  an  order  made  in  such  an  action  or  special  proceed- 
ing ;  the  words,  "  an  action  of  ejectment,"  to  an  action  to  recover  the  immediate  pos- 
session of  real  property. 

Much  confusion  has  arisen   under  the  present  Code  as  to  the 
distinction   between  an  action   and   special  proceeding,  and  the 
courts  have,  at   different  times,  attempted   to  define   "  actions  " 
and  "  special  proceedings  "  respectively.     The  difficulty  is  stated 
by  Daniels,  J.,  in  Matter  of  Guardianship  of  King,  42  Hun,  607. 
He  says:  "  Strictly  what  an  action  maybe  now  designated  to  be 
has  not  been  defined   in  the  present  Code   of  Civil  Procedure. 
What  it  contains  on  this  subject  is  the  statement  made  in  sub- 
division 20  of  section  3343,  and  that  is,  that  the  word  action  re- 
fers to  a  civil  action,  which   is  no   more  intelligible   than  many 
other  portions  of  this  Code.     The  preceding  Code  by  subdivision 
2    of   §  I  was   more    clear    and  explicit    in    its    definition,    and 
that  defined  an  action  to  be  a  regular  judicial  proceeding  in  which 
a  party  prosecutes  another  for  the  enforcement  or  protection  of 
a  right  or  the  redress  or  prevention  of  a  wrong,  and  declared 
every  other  civil  remedy  to  be  a  special  proceeding.     This  defini- 
tion was  clear  and  apt  and  entirely  consistent  with  the  preceding 
as  well  as  subsequent  understanding  of  the   distinction  between 
an  action  and  a  special  proceeding." 

The  learned  judge  evidently  overlooked  the  definition  of  an 
action  in  §  3333. 

A  note  on  the  distinction  between  actions  and  special  proceed- 
ings in  McLean  v.  Jephson,  26  Abb.  N.  C.  44,  states  so  clearly 
and  fully  the  situation  with  regard  to  this  vexed  question  that 
it  is  inserted  in  full  as  follows : — 

"  The  original  di.stinction  between  actions  and  special  proceed- 
ings is  very  well  understood.  The  Code  says,  that  an  action  is 
an  '  ordinary  prosecution,'  etc.,  but  '  ordinary '  needs  definition 


SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 


Art.    I.     Special  Proceedings  Defined. 


even  more  than  action.  It  means  that  form  of  prosecution 
where  the  claimant  has  a  right  to  issue  summons,  to  answer  a 
complaint  stating  the  facts  constituting  the  cause  of  action,  and 
defendant  has  a  right  to  take  issue  or  set  up  his  facts  in  defence 
or  counterclaim,  and  either  party  may  require  a  trial  and  a  judg- 
ment, enforcible  by  execution  ;  as  distinguished  from  those  forms 
where  the  statute  or  the  court  prescribes  other  means  of  bringing 
in  the  defendant,  or  presenting  the  facts  and  formulating  the 
decision  and  its  enforcement. 

"  Practically  the  only  difficulty  in  the  distinction  is  introduced 
by  our  complex  statutes  which  have  half  obliterated  the  lines 
between  them,  by  transformations  from  one  category  into  an- 
other and  back  again.  Even  this  would  be  of  little  importance, 
were  it  not  that  there  are  some  very  substantial  differences  be- 
tween our  rights  in  prosecuting  an  action,  and  our  rights  in 
prosecuting  a  special  proceeding.  The  regulations  differ  more 
or  less  in  regard  to  the  service  of  some  papers,  the  subjects  of 
motions  and  orders,  subpoenas,  depositions,  discovery  of  books 
and  papers,  amendment,  abatement  and  continuance,  and  in  some 
cases  as  to  appeal  and  costs.  Hence,  the  following  suggestion 
of  the  points  of  departure  may  be  useful. 

"  The  ordinary  proceedings  in  an  action  sometimes  branch  out 
into  a  special  proceeding,  and  in  pursuing  that  branch  the  prac- 
titioner must  not  forget  that  he  has  crossed  the  line  of  demarca- 
tion. 

"  On  the  other  hand  there  are  a  number  of  special  proceedings 
which  at  one  stage  or  another  are,  so  to  speak,  transmuted  into 
actions,  or  subjected  to  the  regulations  applicable  to  actions,  by 
reason  of  special  provisions  of  statutes  which,  with  the  innocent 
intention  of  simplifying  the  practice,  declare,  sometimes  in  one 
form  and  sometimes  in  another,  that  a  special  proceeding  shall 
be  from  such  a  point,  or  in  such  a  respect  subject  to  the  provisions 
regulating  actions." 

Ingraham,  J.,  in  McLean  v.  JcpJison,  26  Abb.  N.  C.  40,  13 
Supp.  834,  refers  to  the  provisions  of  section  3333,  defining 
an  action,  and  also  to  the  succeeding  section,  3334,  providing 
"That  every  other  prosecution  by  a  party  for  either  of  the  pur- 
poses specified  in  the  last  section  is  a  special  proceeding."  He 
then  calls  attention  to  the  fact  that  section  416  provides  that  a 
civil  action  is  commenced  by  the  service  of  a  summons,  and  holds 


SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED.  5 

Art.   I.     Special  Proceedings  Defined. 

that  the  proceeding  in  question  not  having  been  commenced  by 
the  service  of  a  summons  was  not  an  action,  but  that  it  was  a 
prosecution  in  a  court  of  justice  by  a  party  against  another 
party  for  the  enforcement  of  a  right  and  therefore  is  a  special 
proceeding  within  the  provisions  of  the  section  defining  such 
proceedings.  Kennedy,  J.,  in  Hallock  v.  Bacon,  21  Civ.  Proc. 
255,  says  that  the  definition  of  Special  Proceedings  in  the  Code 
is  sufificiently  broad  to  include  every  possible  case  coming  within 
it,  whether  the  right  of  the  party  is  created  by  the  Revised  Stat- 
utes or  the  Code  itself. 

What  is  a  Special  Proceeding  is  considered  in  Matter  of 
Cooper,  22  N.  Y.  67,  as  defined  under  the  former  Code.  The 
court  holds  that  as  the  proceeding  could  not  by  any  possibility 
be  an  action,  it  is  a  special  proceeding,  provided  it  is  a  remedy 
at  all.  The  court  quotes  the  remark  of  Johnson,  J.,  in 
Belknap  v.  Waters,  1 1  N.  Y.  477,  as  follows  :  "  The  Code,  un- 
fortunately, has  not  furnished  us  with  a  definition  of  a  remedy 
except  in  so  far  as  one  can  be  drawn  from  its  distribution  of  all 
remedies  into  actions  and  special  proceedings.  It  seems  to  re- 
gard every  original  application  to  a  court  of  justice  for  a  judg- 
ment or  for  an  order  as  a  remedy.  According  to  this  interpreta- 
tion, which  I  deem  just,  the  application  of  the  appellant  to  the 
Supreme  Court  was  clearly  a  remedy.  If  we  take  the  definition 
of  the  word  *  remedy  '  given  by  lexicographers  the  result  is  the 
same.  Bouvier  defines  a  remedy  to  be  *  the  means  employed  to 
enforce  a  right  or  redress  an  injury.'  " 

In  Matter  of  Ryers,  72  N.Y.  at  page  4,  Folger,  J.,  speaking  for 
the  court,  says:  "It  is  a  statutory,  and,  therefore,  it  is  a  special 
proceeding." 

What  constitutes  special  proceedings  is  discussed  in  Peri  v. 
N.  V.  C.  &  H.  R.  R.  Co.,  152  N.  Y.  521,  opinion  by  Bartlett,  J., 
at  page  526. 

In  considering  what  constitutes  a  special  proceeding  in 
Matter  of  Rafferty,  14  App.  Div.  55,  after  referring  to  the  defini- 
tion of  civil  action,  the  court  says  :  "  Every  other  civil  remedy  is 
defined  to  be  a  special  proceeding."  The  action  is  commenced 
by  the  service  of  a  summons  in  some  one  of  the  modes  prescribed 
by  law,  and  it  is  plain  that  no  proceeding  can  be  an  action 
unless  it  be  such  that  can  be  commenced  by  the  service  of  a  sum- 
mons on  the  opposite  party ;  and  pleadings — that  is,  the  allega- 


6  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 

Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

tions  of  the  cause  of  action  on  the  one  side,  and,  unless  there  be 
default,  of  the  defence  upon  the  other,  are  incidents  to  every 
action.     Roe  v.  Boyle,  8i  N.  Y.  305. 

It  is  said  \n  Matter  of  Lima,  etc.,  Raikvay  Co.,  6%  Hun,  253, 
that  a  motion  is  defined  by  sections  767  and  768  of  the  Code,  and 
per  Dwight,  P.  J.,  it  is  held :  "  By  that  definition  the  order  is  a 
direction  of  the  court  or  judge  made  in  an  action  or  special  pro- 
ceeding, and  the  application  for  such  order  is  a  motion.  This, 
we  think,  indicates  the  characteristic  which  distinguishes  a 
motion  as  an  application  in  a  proceeding,  namely,  that  a  motion 
is  an  application  in  a  proceeding  by  action  or  otherwise  already 
pending,  or  about  to  be  commenced,  upon  which  it  depends  for 
jurisdiction.  Whereas  the  special  proceeding  is  an  independent 
prosecution  of  a  remedy  in  which  jurisdiction  is  obtained  by 
original  process.  ...  A  special  proceeding  is  the  prosecution 
of  a  remedy  by  original  process,  and  independently  of  any  other 
proceeding,  which  is  opposed  to  the  definition  of  a  motion." 
Citing  Rensselaer  &  Saratoga  R.  R.  Co.  v.  Davis,  55  N.  Y.  145  ; 
Matter  of  Jetter,  78  N.Y.  601  ;  Matter  of  Long,  39  St.  Rep.  892  ; 
Matter  of  Holden,  126  N.  Y.  589.  For  further  citations  as  to 
what  constitutes  a  Special  Proceeding,  see  Appeals,  Art.  V.,  this 
chapter;  also.  Art.  III. 

ARTICLE  II. 

General  Provisions    of    the   Code    Relating  to     the 

Subject.  §§  340,  sub.  4,342,  348,  25,  26,  37,  44,  52,  53, 
414,  433,716,  815,  825,860,  867, 1688,  1777,  1814,  1900,2516, 
2517,  2861,  2868,  3150,  3152,  3316,  3352. 

Sub.  I.     Jurisdiction  of  Speci.^l  Proceedings.     §§  340,  sub.  4,  342, 

348,  25,  26,  37,  44,  52,  53. 

§  340.    [Am'd,  1895.]    Jurisdiction. 

The  jurisdiction  of  each  county  court  extends  to  the  following  actions  and  special 
proceedings,  in  addition  to  the  jurisdiction,  power,  and  authority,  conferred  upon  a 
county  court,  in  a  particular  case,  by  special  statutory  provision  : 

4.  To  the  custody  of  the  person  and  the  care  of  the  property,  concurrently 
with  the  Supreme  Court,  of  a  resident  of  the  county,  who  is  incompetent  to  manage 
his  affairs,  liy  reason  of  lunacy,  idiocy,  or  habitual  drunkenness;  and  to  every  special 
proceeding,  which  the  Supreme  Court  has  jurisdiction  to  entertain,  for  the  appoint- 
ment of  a  committee  of  the  person  or  of  the  property  of  such  an  incompetent  person, 
or  for  the  sale  or  other  disposition  of  tlie  real  property  situated  within  the  county  of 


SPECIAL   PROCEEDINGS    GENERALLY    CONSIDERED.  / 

Art.  2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

a  per.son,  wherever  resident,  who  is  so  incompetent  for  either  of  the  reasons  aforesaid, 
or  who  is  an  infant;  or  for  the  sale  or  other  disposition  of  the  real  property,  situated 
within  the  county,  of  a  domestic  religious  corporation. 

L.   1S95,  ch.  946;  Co.  Proc.  ^  30,  part  of  sub.  i,  as  am'd  1870,  ch.  467,  §  i. 

§  342.  [Am'd,  1877.]  Action,  etc.,  wherein  county  judge  is 
incapable  to  act. 

If  the  county  judge  is,  for  any  cause,  incapable  to  act  in  an  action  or  special  pro- 
ceeding, pending  in  the  county  court,  or  before  him,  he  must  make,  and  file  in  the 
office  of  the  clerk,  a  certificate  of  the  fact;  and  thereupon  the  special  county  judge, if 
any,  and  if  not  disqualified,  must  act  as  county  judge  in  that  action  or  special  pro- 
ceeding. Upon  the  filing  of  the  certificate,  where  there  is  no  special  county  judge,  or 
the  special  county  judge  is  disqualified,  the  action  or  special  proceeding  is  removed 
to  the  Supreme  Court,  if  it  is  then  pending  in  the  county  court ;  if  it  is  pending  before 
the  county  judge,  it  may  be  continued  before  any  justice  of  the  Supreme  Court 
within  the  same  judicial  district.  The  Supreme  Court,  upon  the  application  of  either 
party,  made  upon  notice,  and  upon  proof  that  the  county  judge  is  incapable  to  act  in 
an  action  or  special  proceeding  pending  in  the  county  court,  may,  and  if  the  special 
county  judge  is  also  incapable  to  act,  must,  make  an  order  removing  it  to  the  Supreme 
Court.  Thereupon  the  subsequent  proceedings  in  the  Supreme  Court  must  be 
jthe  same  as  if  it  had  originally  been  brought  in  that  court,  except  that  an  objec- 
tion to  the  jurisdiction  may  be  taken,  which  might  have  been  taken  in  the  county 
court. 

§  348.  When  jurisdiction,  etc.,  co-extensive  with  Supreme  Court. 

Where  a  county  court  has  jurisdiction  of  an  action  or  a  special  proceeding,  it 
possesses  the  same  juri  diction,  power,  and  authority  in  and  over  the  same,  and  in 
the  course  of  tlie  proceedings  therein,  which  the  Supreme  Court  possesses  in  a  like 
case;  and  it  may  render  any  judgment,  or  grant  either  party  any  relief,  which  the 
Supreme  Court  might  render  or  grant  in  alike  case,  and  may  enforce  its  mandates  in 
like  manner  as  the  Supreme  Court.  And  the  county  judge  possesses  the  same  power 
and  authority,  in  the  action  or  special  proceeding,  which  a  justice  of  the  Supreme 
Court  possesses,  in  a  like  action  or  special  proceeding,  brought  in  the  Supreme 
Court. 

§25.    [Ara'd,  1877.]  Nodiseontinuancebyreasonof  vacancy,  etc. 

An  action  or  special  proceeding,  civil  or  criminal,  in  a  court  of  record,  is  not  dis- 
continued by  a  vacancy  or  change  in  the  judges  of  the  court,  or  by  the  re-election  or 
re-appointment  of  a  judge;  but  it  must  be  continued,  heard,  and  determined,  by  the 
•court,  as  constituted  at  the  time  of  the  hearing  or  determination.  After  a  judge  is 
out  of  office,  he  may  settle  a  case  or  exceptions,  or  make  any  return  of  proceedings, 
had  before  him  while  he  was  in  office,  and  may  be  compelled  so  to  do,  by  the  court 
in  which  the  action  or  special  proceeding  is  pending. 

2  R.  S.  277,  §  2. 

g  26.  In  New  York,  one  judge  may  continue  proceedings  com- 
menced before  another. 

In  the  city  and  county  of  New  York  and  in  the  county  of  Kings,  a  special  proceed- 
ing instituted  before  a  judge  of  a  court  of  record,  or  a  proceeding  commenced  before 
a  judge  of  the  court,  out  of  court,  in  an  action  or  special  proceeding  pending  in  a 
court  of  record,  may  be  continued  from  time  to  time,  before  one  or  more  other  judges 


8  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 

Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

of  the  same  court,  with  like  effect,  as  if  it  had  been  instituted  or  commenced  before 
the  judge,  who  last  hears  the  same.     (See  §  771.) 

§  37.  Causes  tried  elsewhere  than  at  court-house. 

The  parties  to  an  action  or  special  proceeding,  pending  in  a  court  of  record,  may, 
with  the  consent  of  the  judge  who  is  to  try  or  hear  it,  without  a  jury,  stipulate  in 
writing,  that  it  shall  be  tried  or  heard  and  determined,  elsewhere  than  at  the  court- 
house. The  stipulation  must  specify  the  place  of  trial  or  hearing,  and  must  be  filed 
in  the  office  of  the  clerk ;  and  the  trial  or  hearing  must  be  brought  on  upon  the  usual 
notice,  unless  otherwise  provided  in  the  stipulation. 

§  44.  No  action  or  special  proceeding  abated,  etc.,  by  failure  or 
adjournment  of  court. 

When  a  term  of  *  court  fails  or  is  adjourned,  or  the  time  or  place  of  holding 
the  same  is  changed,  as  prescribed  in  this  chapter,  an  action,  special  proceeding,  writ, 
process,  recognizance,  or  other  proceeding,  civil  or  criminal,  returnable,  or  to  be  heard 
or  tried,  at  that  term,  is  not  abated,  discontinued,  or  rendered  void  thereby ;  but  all 
persons  are  bound  to  appear,  and  all  proceedings  must  be  had,  at  the  time  and  place 
to  which  the  term  is  adjourned  or  changed,  or,  if  it  fails,  at  the  next  term,  with  like 
effect  as  if  the  term  was  held,  as  originally  appointed. 

§  52.  Substitution  of  one  officer  for  another  in  special  proceed- 
ings. 

In  case  of  the  death,  sickness,  resignation,  removal  from  office,  absence  from  the 
county,  or  other  disability  of  an  officer,  before  whom  a  special  proceeding  has  been 
instituted,  where  no  express  provision  is  made  by  law  for  the  continuance  thereof,  it 
may  be  continued  before  the  officer's  successor,  or  any  other  officer  residing  in  the 
same  county,  before  whom  it  might  have  been  originally  instituted;  or,  if  there  is  no 
such  officer  in  the  same  county,  before  an  officer  in  an  adjoining  county,  who  would 
originally  have  had  jurisdiction  of  the  subject-matter,  if  it  had  occurred  or  existed  in 
the  latter  county. 

§  53.  Proceedings  before  substituted  officer. 

At  the  time  and  place  specified  in  a  notice  or  order,  for  a  party  to  appear,  or  for 
any  other  proceeding  to  be  taken,  or  at  the  time  and  place  specified  in  the  notice  to 
be  given,  as  prescribed  in  this  section,  the  officer  substituted  as  prescribed  in  the  last 
section,  or  in  any  other  provision  of  law,  to  continue  a  special  proceeding  instituted 
before  another,  may  act,  with  respect  to  the  special  proceeding,  as  if  it  had  been 
originally  instituted  before  him.  But  a  proceeding  shall  not  be  taken  before  a  sub- 
stituted officer,  at  a  time  or  place,  other  than  that  specified  in  the  original  notice  or 
order,  until  notice  of  the  substitution,  and  of  the  time  and  place  appointed  for  the 
proceeding  to  be  taken,  has  been  given,  either  by  personal  service  or  by  publication 
in  such  manner  and  for  such  time  as  the  substituted  officer  directs,  to  each  party  who 
may  be  effected  t  thereby,  and  who  has  not  appeared  before  either  officer.  Where, 
after  a  hearing  has  been  commenced,  it  is  adjourned  to  the  next  judicial  day,  each 
day  to  which  it  is  so  adjourned,  is  regarded,  for  the  purposes  of  this  section,  as  the 
day  specified  in  the  original  notice  or  order,  or  in  the  notice  to  appear  before  the 
substituted  officer,  as  the  case  requires. 

*  The  word  'a  "omitted  by  error  in  engrossing, 
t  Error  in  engrossing  for  "  affected." 


SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED.  9 

Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

The  foregoing  provisions  of  the  Code,  scattered  through  the 
various  chapters  and  titles,  are  here  grouped  for  convenience  of 
reference  in  the  order  in  which  they  appear  therein,  with  other 
matters.  As  to  power  and  jurisdiction  of  county  courts  in 
special  proceedings,  see  Code  of  Civil  Procedure,  §  340,  sub.  4. 
As  to  powers  of  Supreme  Court,  see  §  217. 

Where  a  judge  has  made  an  order  to  show  cause  in  a  proceed- 
ing which  he  is  incompetent  to  hear  on  account  of  being  an 
interested  person,  and  has  afterwards  resigned,  the  matter  is  not 
properly  in  court  for  determination  by  his  successor  in  office. 
In  re  Reddish,  18  St.  Rep.  41,  2  Supp.  259.  A  county  judge 
cannot  make  an  order  relating  to  the  care,  custody,  or  control 
of  infants.  Williams  v.  Corey,  46  Hun,  408  ;  People  v.  Parr,  49 
Hun,  473,  2  Supp.  263,  18  St.  Rep.  315,  affirmed,  121  N.  Y.  679. 

The  provision  of  §  25  empowering  a  judge  out  of  office  to 
settle  a  case  and  exceptions  or  make  a  return  of  proceedings 
before  him  while  in  office  does  not  enable  him  to  decide  an  issue 
or  motion  ;  nor  do  the  provisions  of  §  26  authorizing  the  con- 
tinuation of  certain  proceedings  commenced  before  one  judge 
of  the  county  court  of  New  York  or  Kings  before  another  judge 
of  the  same  court.  That  relates  to  a  proceeding  before  a  judge 
out  of  court  and  has  no  application  to  an  issue  or  motion  in  an 
action  or  special  proceeding  heard  by  the  court  ;  nor  does  §  52, 
which  provides  that  "  in  case  of  the  death,  sickness,  resignation, 
or  other  disability  of  an  officer  before  whom  a  special  proceed- 
ing has  been  instituted,  it  may  be  continued  before  his  suc- 
cessor." Matter  of  Mayor  of  New  York,  139  N.  Y.  143,  dis- 
tinguishing Kelly  V.  Chrystol,  16  Hun,  242,  and  affirming  Matter 
of  Mayor,  69  Hun,  271. 

The  effect  of  §  44  is  that  if  a  term  of  the  court  fails  the 
court  has  power  by  statute  to  act  at  the  next  term  of  the  court 
with  the  same  effect  that  it  could  have  done  at  the  term  which 
failed.     People  v.  Swales,  33  Hun,  208. 

The  trial  of  an  action  was  commenced  before  Mr.  Justice  Pratt 
on  October  7,  1877,  and  continued  until  January  26,  1878,  testi- 
mony being  taken  at  various  intermediate  dates.  The  term  of 
office  of  Mr.  Justice  Pratt  expired  December  31,  1877,  but  having 
been  re-elected  he  commenced  a  new  term  January  31,  1878.  No 
objection  was  made  to  proceeding  with  the  trial  by  any  of  the 
parties  at  the  time.     Held,  that  no  objection  to  the  regularity  of 


lO  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 


Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 


the  proceedings  could  be  raised  after  judgment  therein.     Kelly 
V.  Christal,  i6  Hun,   242,  affirmed,  without  passing  on  this  point, 

81  N.  Y.  619. 

It  was  held,  of  a  provision  similar  to  §  26  under  the  old  Code, 
in  superior  court,  that  proceeding  commenced  in  the  first  judicial 
district  by  any  judge  competent  to  institute  it  therein,  might  be 
continued  in  such  district  before  any  other  judge  competent  to 
have  commenced  it.  Dresser  w.  Van  Pell,  15  How.  19;  S.  C.  6 
Duer,  687. 

The  application  of  a  sheriff  to  fix  the  fees  in  an  attachment 
case  is  a  continuation  of  the  attachment  proceeding,  and  the 
hearing  could,  in  New  York  city,  be  had  before  a  judge  other 
than  the  one  who  issued  the  attachment,  by  virtue  of  this  provi- 
sion.     Woodruff  v.  Imperial  Fire  Insuranee  Co.,  90  N.  Y.  521. 

Contested  motions  requiring  notice  cannot  be  heard  at  a  Special 
Term  adjourned  by  the  justice  holding  it  to  his  chambers,  unless 
by  consent  of  all  the  parties.  The  section  is  a  substitute  for 
§  41,  chapter  470,  Laws  of  1847.  Matter  of  Wadlej,  29  Hun,  12. 
The  language  of  §  41  is  construed  in  People  v.  Swales,  33  Hun,  208. 

Where  a  special  proceeding  is  pending  before  a  county  court, 
the  county  judge  whereof  is  disqualified  from  acting,  he  cannot 
make  an  order  directing  it  to  be  heard  before  a  justice  of  the 
Supreme  Court,  but  should  make  and  file  with  the  county  clerk 
a  certificate  of  disqualification.  A  proceeding  pending  in  a 
-county  court  cannot  be  continued  before  a  justice  of  the  Supreme 
CourL  but  must  be  removed  into  the  Supreme  Court.  Matter  of 
Village  of  Rhinebeck,  19  Hun,  346.  It  was  held  before  the  Code 
that  where  a  county  judge  was  interested,  he  might  request  an- 
other county  judge  to  hold  the  court.  Matter  of  Ryers,  lO  Hun, 
93.     The  language  of  this  section  seems  to  be  mandatory. 

Sub.  2.  Miscellaneous  Regulations' Applicable  to  Special  Pro- 
ceedings. §§  414,  433,  716,  815,  825,860,  867,  1688,  1777,  1814, 
1900,  2516,  2517,  2861,  2868,  3150,  3152,  3316,  3352. 

§  414.  Cases  to  which  this  chapter  applies. 

The  provisions  of  this  chapter  apply,  and  constitute  the  only  rules  of  limitation 
applicable  to  a  civil  action  or  special  proceeding  except  in  one  of  the  following  cases : 

1.  A  case,  where  a  different  limitation  is  specially  prescribed  by  law,  or  a  shorter 
limitation  is  prescribed  by  the  written  contract  of  the  parties. 

2.  A  cause  of  action  or  a  defence  which  accrued  before  the  first  day  of  July,  1848. 
The  statutes  then  in  force  govern,  with  respect  to  such  a  cause  of  action  or  defence. 


SPECIAL    PROCEEDliNUS    GENERALLY    CONSIDERED.  II 


Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

3.  A  case,  not  included  in  the  last  subdivision,  in  which  a  person  is  entitled,  when 
this  act  takes  effect,  to  commence  an  action,  or  to  institute  a  special  proceeding,  or  to 
take  any  proceeding  therein,  or  to  pursue  a  remedy  upon  a  judgment,  where  he  com- 
mences.-institutes,  or  otherwise  resorts  to  the  same,  before  the  expiration  of  two 
years  after  this  act  takes  effect ;  in  either  of  which  cases,  the  provisions  of  law  appli- 
cable thereto,  immediately  before  this  act  takes  effect,  continue  to  be  so  applicable, 
notwithstanding  the  repeal  thereof. 

4.  A  case,  where  the  time  to  commence  an  action  has  expired,  when  this  act  takes 
effect. 

The  word,  "  action,"  contained  in  this  chapter,  is  to  be  construed,  when  it  is  neces- 
sary so  to  do,  as  including  a  special  proceeding,  or  any  proceeding  therein,  or  in  an 
action. 

§  433.  Service  of  process,  etc.,  to  commence  a  special  proceeding. 

The  provisions  of  this  article,  relating  to  the  mode  of  service  of  a  summons,  apply 
likewise  to  the  service  of  any  process  or  other  paper,  whereby  a  special  proceeding  is 
commenced  in  a  court,  or  before  an  officer,  except  a  proceeding  to  punish  for  contempt, 
and  except  where  special  provision  for  the  service  thereof  is  otherwise  made  by  law. 

§  716.     [Am'd,  1895.]    Certain  receivers  may  hold  real  property. 

A  receiver,  appointed  by  or  pursuant  to  an  order  or  a  judgment,  in  an  action  in  the 
Supreme  Court  or  a  county  court,  or  in  a  special  proceeding  for  the  voluntary  disso- 
lution of  a  corporation,  may  take  and  hold  real  property,  upon  such  trusts  and  for 
such  purposes  as  the  court  directs,  subject  to  the  direction  of  the  court,  from  time  to 
time,  respecting  the  disposition  thereof. 

§  815.  Bonds,  etc.,  not  aftected  by  change  of  parties. 

A  bond  or  undertaking,  given  in  an  action  or  special  proceeding,  as  prescribed  in 
this  act,  continues  in  force,  after  the  substitution  of  a  new  party  in  place  of  an  original 
party,  or  any  other  change  of  parties ;  and  has  thereafter  the  same  force  and  effect,  as 
if  then  given  anew,  in  conformity  to  the  change  of  parties. 

§  825.  Papers  in  special  proceedings ;  where  to  be  filed. 

A  return  or  other  paper  in  a  special  proceeding,  where  no  other  disposition  thereof 
is  prescribed  by  law,  must  be  filed,  and  an  order  therein  must  be  entered,  with  the 
clerk  of  the  county  in  which  the  special  proceeding  is  taken,  if  it  is  before  a  county 
officer,  or  a  judge  of  a  court  established  in  a  city;  if  before  a  justice  of  the  Supreme 
Court,  with  the  clerk  of  a  county  designated  by  the  justice  ;  or,  if  no  designation  is 
made  by  him,  of  a  county  where  one  of  the  parties  resides. 

g  860.  Witness  exempt  from  arrest. 

A  person  duly  and  in  good  faith  suljpoenaed  or  ordered  to  attend,  for  the  purpose 
of  being  examined,  in  a  case  where  his  attendance  may  lawfully  be  enforced  by  attach- 
ment, or  by  commitment,  is  privileged  from  arrest  in  a  civil  action  or  special  pro- 
ceeding, while  going  to,  remaining  at,  and  returning  from,  the  place  where  he  is  required 
to  attend. 

§  867.     [Am'd,  1879.]     Production,  etc.,  of  book  of  account. 

A  person  shall  not  be  compelled  to  produce,  upon  a  trial  or  hearing,  a  book  of 
account,  otherwise  than  by  an  order  requiring  him  to  produce  it,  or  a  subpoena  duces 
tecum.     Sucli  a  subpoena  must  be  served  at  least  five  days  before  the  day  when  he  is 


12  SPECIAL   PROCEEDINGS   GENERALLY    CONSIDERED. 


Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 


required  to  attend.  At  any  time  after  service  of  such  a  subpoena  or  order,  the  witness 
may  obtain,  upon  such  a  notice  as  the  judge,  referee,  or  other  officer  prescribes,  an 
order  relieving  him  wholly  or  partly  from  the  obligations  imposed  upon  him  by  the 
subpoena  or  the  order  for  production,  upon  such  terms  as  justice  requires  touching 
the  inspection  of  the  book  or  any  portion  thereof,  or  taking  a  copy  thereof  or  extracts 
therefrom,  or  otherwise.  An  order  may  be  made,  as  prescribed  in  this  section,  by  a 
judge  of  the  court,  or  in  a  special  proceeding  pending  out  of  court  before  an  officer, 
by  the  officer,  or,  in  either  case,  by  a  referee  duly  appointed  in  the  cause,  and  author- 
ized to  hear  testimony.  A  justice  of  the  peace,  or  other  judge  of  a  court  not  of 
record,  may  make  such  an  order  in  an  action  brought  in  his  court,  at  any  time  after 
the  commencemenj  thereof. 

§  1688.  When  special  proceeding  to  recover  real  property  not 
allowed. 

A  special  proceeding  to  recover  real  property  cannot  be  taken,  except  in  a  case 
specially  prescribed  by  law. 

§  1777.  Misnomer,  when  waived. 

In  an  action  or  special  proceeding,  brought  by  or  against  a  corporation,the  defend- 
ant is  deemed  to  have  waived  any  mistake  in  the  statement  of  the  corporate  name, 
unless  the  misnomer  is  pleaded  in  the  answer,  or  other  pleading  in  the  defendant's 
behalf. 

§  1814.  Action,  etc.,  by  and  against  executor,  etc.,  to  be  brought 
in  representative  capacity. 

An  action  or  special  proceeding,  hereafter  commenced  by  an  executor  or  adminis- 
trator, upon  a  cause  of  action,  belonging  to  him  in  his  representative  capacity,  or  an 
action  or  special  proceeding,  hereafter  commenced  against  him,  except  where  it  is 
brought  to  charge  him  personally,  must  be  brought  by  or  against  him  in  his  represent- 
ative capacity.  A  judgment,  in  an  action  hereafter  commenced,  recovered  against 
an  executor  or  administrator,  without  describing  him  in  his  representative  capacity, 
cannot  be  enforced  against  the  property  of  the  decedent,  except  by  the  special  direc- 
tion of  the  court,  contained  therein. 

§  1900.  Action  for  suing,  etc.,  in  name  of  another.  Made  also  a 
misdemeanor. 

If  a  person,  vexatiously  or  maliciously,  in  the  name  of  another  but  without  the 
latter's  consent,  or  in  the  name  of  an  unknown  person,  commences  or  continues,  or 
causes  to  be  commenced  or  continued,  an  action  or  special  proceeding,  in  a  court  of 
record,  or  not  of  record,  or  a  special  proceeding  before  a  judge  or  a  justice  of  the 
peace;  or  takes,  or  causes  to  be  taken,  any  proceeding,  in  the  course  of  an  action  or 
special  proceeding  in  such  a  court,  or  before  such  an  officer,  either  before  or  after 
judgment  or  other  final  determination;  an  action,  to  recover  damages  therefor, 
may  be  maintained  against  him,  by  the  adverse  party  to  the  action  or  special  pro- 
ceeding ;  and  a  like  action  may  be  maintained  by  the  person,  if  any,  whose  name 
was  thus  used.  He  is  also  guilty  of  a  misdemeanor,  punishable  by  imprisonment,  not 
exceeding  six  months. 

§  2516.  Proceedings  to  be  commenced  by  citation. 

Except  in  a  case  where  it  is  otherwise  specially  prescribed  by  law,  a  special  pro- 
ceeding in  a  surrogate's  court  must  be  commenced  by  the  service  of  a  citation,  issued 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  1 3 


Art.   2.     General  Provisions  of  the  Code  Relating  to  the  Subject. 

upon  the  presentation  of  a  petition.  But  upon  the  presentation  of  the  petition,  the 
court  acquires  jurisdiction  to  do  any  act,  which  may  be  done  before  actual  service  of 
the  citation. 

See  §§  2525  and  2533. 

§  2517.  Id.  ;  within  the  statute  of  limitations. 

The  presentation  of  a  petition  is  deemed  the  commencement  of  a  special  proceeding, 
within  the  meaning  of  any  provision  of  this  act,  which  limits  the  time  for  the  com- 
mencement thereof.  But  in  order  to  entitle  the  petitioner  to  the  benefit  of  this 
section,  a  citation  issued  upon  the  presentation  of  the  petition,  must,  within  sixty 
days  thereafter,  be  served,  as  prescribed  in  §  2520  of  this  act,  upon  the  adverse 
party,  or  upon  one  of  two  or  more  adverse  parties,  who  are  jointly  liable,  or  other- 
wise united  in  interest;  or,  within  the  same  time,  the  first  publication  thereof  must  be 
made,  pursuant  to  an  order  made  as  prescribed  in  §  2522  of  this  act. 

§  2861.  Justice's  jurisdiction  must  be  specially  conferred  by  law. 

A  justice  of  the  peace  has  such  jurisdiction  in  civil  actions  and  special  proceedings, 
as  is  specially  conferred  upon  him  by  a  statute,  and  no  other. 

§  2868.    [Am'd,  1897.]    Justices  to  hold  court;  general  powers. 

A  justice  of  the  peace  must  hold,  within  his  town  or  city,  a  court  for  the  trial  of 
any  action  or  special  proceeding,  of  which  he  has  jurisdiction,  brought  before  him; 
but  such  a  court  shall  not  be  held  in  a  building  in  any  part  of  which  trafficking  in 
liquors  is  authorized.  He  must  hear,  try,  and  determine  the  same,  according  to  law 
and  equity;  and  for  that  purpose,  where  special  provision  is  not  otherwise  made  by 
law,  the  court  is  vested  with  all  the  necessary  powers  possessed  by  the  Supreme 
Court. 

§  3150.  Transfer  of  action  when  justice's  term  expires,  etc. 

If  the  term  of  office  of  a  justice  of  the  peace  is  about  to  expire,  or  he  is  about  to 
remove  from  the  town  or  city,  before  judgment  is  rendered  in  an  action,  or  a  final 
order  is  made  in  a  special  proceeding,  pending  before  him,  he  must  previously  make 
a  written  order,  reciting  the  fact,  and  directing  the  action  or  special  proceeding  to  be 
continued  before  another  justice  of  the  same  town  or  city,  named  in  the  order. 

§  3152.  Proceedings  upon  transfer. 

Where  an  order  is  made,  as  prescribed  in  either  of  the  last  two  sections,  the  con- 
stable must  forthwith  take  it  and  all  other  papers  in  the  action,  with  the  body  of  the 
defendant,  if  he  is  under  arrest,  before  the  justice  named  in  the  order.  The  plaintiff 
or  petitioner  must  forthwith  appear  before  that  justice,  who  must  take  cognizance  of 
the  action  or  special  proceeding,  and  must  proceed  therein  as  if  it  had  been  com- 
menced before  him.  Costs,  recovered  in  the  action  or  special  proceeding,  include  the 
fees  allowed  bylaw,  for  services  performed  by  the  constable  and  the  justice,  before  the 
transfer,  together  with  the  fees  allowed  by  law,  for  the  proceedings  before  the  justice 
to  whom  the  cause  is  transferred. 

§  3316.  Juror's  fees  in  special  proceedings. 

A  trial  juror,  sworn  in  a  special  proceeding,  before  a  judge  of  a  court  of  record  ; 
or  upon  a  writ  of  inquiry  ;  or  upon  a  trial,  before  a  sheriff,  of  a  claim  to  personal 
property,  seized  by  virtue  of  a  warrant  of  attachment  or  an  execution  ;  is  entitled  to 
twenty-five  cents,  to  be  paid  by  the  person  at  whose  instance  the  jury  is  impanelled. 


14  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 


Art.  3.     Some  Special  Proceedings  Enumerated. 

g  3352.  Eflfect  of  this  act,  upon  proceedings  taken,  or  rights  ac- 
crued, etc.,  under  former  statutes. 

Nothing  contained  in  any  provision  of  this  act,  other  than  in  chapter  fourth, 
renders  ineffectual,  or  otherwise  impairs,  any  proceeding  in  an  action  or  a  special  pro- 
ceeding, had  or  taken,  pursuant  to  law,  or  any  other  lawful  act  done,  or  right,  defence, 
or  limitation,  lawfully  accrued  or  established,  before  the  provision  in  question  takes 
effect ;  unless  the  contrary  is  expressly  declared  in  the  provision  in  question.  As  far 
as  it  may  be  necessary,  for  the  purpose  of  avoiding  such  a  result,  or  carrying  into 
effect  such  a  proceeding  or  other  act,  or  enforcing  or  protecting  such  a  right,  defence, 
or  limitation,  the  statutes  in  force  on  the  day  before  the  provision  takes  effect  are 
deemed  to  remain  in  force,  notwithstanding  the  repeal  thereof. 

ARTICLE   III. 
Some  Special  Proceedings  Enumerated. 

The  following  are  some  of  the  numerous  decisions  holding  what 
are,  and  what  are  not,  special  proceedings  ;  there  are  doubtless 
numerous  others  of  the  same  character,  but  it  is  difficult  to  collate 
them,  as  they  are  not  to  be  found  digested  or  collated  under  any- 
single  subject.  The  following  are  held  to  be  special  proceedings  : 
An  application  for  admission  to  practise  as  an  attorney.  Matter 
of  Cooper,  22  N.  Y.  6"] ,  more  fully  as  Matter  of  Graduates,  1 1 
Abb.  301.  Application  to  assess  damages  under  Plankroad  and 
Turnpike  Act.  In  re  Fort  Plain  and  Cooperstown  Plankroad  Co., 
3  Code  R.  148.  Proceedings  to  assess  damages  for  a  local 
improvement.  King  v.  Mayor  of  New  York,  36  N.  Y.  182. 
Motion  to  set  aside  confession  of  judgment  for  defect  in  state- 
ment. Belknap  v.  Waters,  11  N.  Y.  477.  Petition  to  compel 
infant  heirs  to  perform  their  ancestor's  contract.  Hyatt  v.  Seeley, 
II  N.  Y.  52.  Proceedings  to  compel  the  support  of  poor  relations. 
Haviland  V.  White,  7  How.  154.  Appeal  before  referees  in  high- 
way proceedings.  People  v.  Albright,  23  id.  306  ;  Flake  v.  People ^ 
14  id.  527.  Contra,  People  v.  Heath,  20  id.  304;  see  People  v. 
Strevell,  1 5  Week.  Dig.  88.  Proceedings  supplementary  to  execu- 
tion. Gould  V.  Chapin,  4  How.  185  ;  Smith  v.  Tozer,  3  State  Rep. 
164  ;  Jones  v.  Shertnan,  8  id.  344.  Proceedings  under  the  General 
Assignment  Acts.  Matter  of  Thorn,  10  Daly,  71  ;  Matter  of 
Potter,  8  State  Rep.  261.  Certiorari.  People  v.  Jacobs,  5  Hun, 
428,  affirmed,  (S6  N.  Y.  8. 

A  proceeding  by  attachment  against  an  attorney  to  compel 
the  payment  to  the  county  treasurer  of  surplus  money  in  an 
action  of  foreclosure  in  wiiich  he  acted  as  attorney  for  the  peti- 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  15 

Art.  3.     Some  Special  Proceedings  Enumerated. 

tioners,  is  a  special  proceeding  and  the  costs  are  properly  allowed, 
as  in  a  special  proceeding.  It  is  not  a  mere  motion  in  the  fore- 
closure suit,  flatter  of  Silver  7iail,^^  Hun,  575  ;  People  v.  Stilwcll, 
19  id.  531  ;  People  v.  Board  of  Commissioners  of  Taxes  afid  Assess- 
ments, 'j6  id. 6^.  A  proceeding  to  vacate  an  assessment.  Matter 
of  Manhattan  Savings  Institution,  82  N.  Y.  142;  Matter  of  Prot- 
estant Episcopal  School,  86  id.  396.  But  see  Matter  of  fetter,  78 
id.  601.  Mandamus.  People  v.  Supervisors  of  Richmond,  28  N. 
Y.  112;  Peoples.  Board  of  Supervisors, 6^  How.  327.  Proceedings 
for  contempt.  Holstein  v.  Rice,  15  Abb.  307;  Gray  v.  Cook,\d. 
308;  Woolfv.  Jacobs,  5  Hun,  428;  Erie  Railway  v.  Ramsay,  45 
N.  Y.  637;  Hart  v.  Johnson,  7  State  Rep.  133.  But  not  for 
criminal  contempt.  People  v.  Gilmour,  88  N.  Y.  626.  Petition 
by  creditor  for  leave  to  begin  an  action  against  a  lunatic. 
Williams  V.  Estate  of  Cameron,  26  Barb.  172.  Proceedings  to 
change  location  of  toll-gate.  McAllister  v.  Albion  Plankroad 
Company,  ii  Barb.  611.  Proceedings  to  condemn  land  for  water 
purposes.     Matter  of  Waverly  Water-Works,  16  Hun,  57. 

Proceedings  to  appraise  lands  for  railroad  purposes  under  the 
General  Railroad  Act.  In  re  N.  V.  Central  R.  R.  Co.,  11  N.  Y. 
276  ;  Rensselaer  &  Saratoga  R.  R.  Co.  v.  Davis,  55  id.  145  ;  Alat- 
ter  of  N.  v.,  W.  S.  &  B.  R.  R.  Co.,  34  Hun,  233  ;  A.  &  S.  R.  R. 
Co.  v.  Dayton,  10  Abb.  (N.  S.)  182  ;  Matter  of  N.  Y.,  lackawanna 
&  W.  R.  R.  Co.,  26  Hun,  592  ;  Matter  of  N.  Y.  &  Harlem  R.  R. 
Co.,  98  id.  12  ;  Matter  of  Cortland,  etc..  Horse  R.  R.  Co.,  98  N.  Y. 
336.  See  brief  of  counsel  for  respondent,  page  339.  Prohibition. 
People  V.  Covunon  Pleas,  43  Barb.  278.  Summary  proceedings  to 
recover  possession  of  land.  People  v.  Boardman,  4  Keyes,  59  ; 
Habeas  corpus.  Matter  of  Barnett,  11  Hun,  468.  Reference  to 
ascertain  the  rights  of  parties  in  surplus  on  statutory  foreclosure. 
Elwell  v.  Robins,  43  How.  108  ;  Matter  of  Gibbs,  58  id.  502  ; 
Mutual  Life  Ins.  Co.  v.  Anthony,  23  Week.  Dig.  427.  A  proceed- 
ing to  procure  the  settlement  of  the  accounts  of  a  deceased 
trustee,  and  the  appointment  of  a  successor  which  is  neither 
commenced  nor  prosecuted  by  a  summons  and  complaint.  Matter 
of  Simpson,  26  Hun,  459  ;  In  re  Livingston,  34  N.  Y.  555.  A 
proceeding  to  compel  a  special  guardian  to  account.  Spelman  v. 
Terry,  74  id.  448.  A  proceeding  for  the  relief  of  imprisoned 
debtors.  /;/  re  Brady,  69  id.  215.  A  proceeding  to  remove  a 
guardian.     Matter  of  King,  4  id.   570.     The  probate  of  a  will. 


l6  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 

Art.  3.     Some  Special  Proceedings  Enumerated. 

Matter  of  Gates,  26  Hun,  181.  An  application  to  enforce  the 
liability  imposed  by  statute,  declaring  an  assignee  of  a  cause  of 
action,  or  one  beneficially  interested  in  the  recovery,  liable  for 
the  costs  of  an  action.  Marvin  v.  Marvin,  78  N.  Y.  541.  An 
application  to  compel  a  receiver  to  pay  over  moneys.  People  v. 
Bank  of  Rochester,  96  id.  32.  Proceedings  by  commissioners  of 
assessment  to  extend  a  street  in  city  of  New  York.  Matter  of 
Mayor,  etc.,  27  St.  Rep.  188.  An  application  for  an  order  under 
the  Election  Law  overruling  the  decision  of  an  ofificer  with  whom 
the  certificates  of  nomination  of  a  candidate  are  filed  as  to  the 
validity  thereof.     Matter  of  Mitchell,  81  Hun,  401. 

Proceedings  for  condemnation  of  land  are  special  proceedings, 
and  terminate  in  a  final  order  and  not  in  a  judgment.  Matter  of 
the  Board  of  Education  of  the  City  of  Brooklyn,  19  Civ.  Pro. 
420.     (See  present  Condemnation  Law.) 

Supplementary  proceedings  are  special  proceedings,  and  under 
the  provisions  of  the  Code,  it  was  clearly  intended  that  they 
could  be  maintained  on  a  justice's  judgment  at  any  time  within 
ten  years.  Bolt  v.  Mauser,  19  Civ.  Prov.  7  ;  Smith  v.  Tozer,  ii 
Civ.  Pro.  349.  A  proceeding  brought  by  one  holding  mortgages 
upon  the  shares  of  two  of  the  defendants,  in  an  action  for  partition 
commenced  after  entry  of  interlocutory  judgment  for  the  sale  of 
the  premises  upon  a  motion  in  which  an  order  of  refer-ence  was 
made  to  ascertain  and  report,  is  a  special  proceeding.  It  is  not  an 
action,  nor,  as  the  mortgagee  is  not  a  party  to  the  partition  action, 
is  it  a  motion  in  the  action.  Byrnes  v.  Labagh,  12  Civ.  Pro.  417. 
An  order  punishing  a  party  to  an  action  as  for  a  contempt  is 
not  an  order  made  in  a  proceeding  in  the  action,  within  the 
provisions  of  the  Code  as  to  appeal  from  an  order  made  in  an 
action,  but  is  an  order  made  in  a  special  proceeding.  Sudloiv  v. 
Knox,  7  Abb.  Pr.  N.  S.  411. 

A  proceeding  to  punish  defendant  for  contempt  to  enforce  a 
civil  remedy  instituted  by  an  order  to  show  cause  is  a  proceed- 
ing in  an  action,  not  a  special  proceeding;  under  §§  2273-- 
2283,  an  order  to  show  cause  is  equivalent  to  a  notice  of  motion, 
and  the  subsequent  proceedings  are  in  the  action.  Ray  v.  N.  V. 
Bay  Extension  Company,  155  N.  Y.  102,  dissmising  appeal  from 
20  App.  Div.  539  ;  fewellers  Mercantile  Agency  v.  Rotchschild, 
155  N.  Y.  255,  following  Pitt  v.  Davison,  37  N.  Y.  235. 

As  to  when  a  proceeding  to  punish  for  a  contempt  is,  and  when 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  1/ 

Art.  3.     Some  Special  Proceedings  Enumerated. 

not  a  special  proceeding,  see  Battennan  v.  Finn,  40  N.  Y.  340; 
Brinklcy  v.  Brinklcy,  47  N.  Y.  40  \  N.  V.  &  N.  H.  R.  Co.  v.  Kct- 
chaisi,  3  Abb.  Decs.  347  ;  Woodhonse  v.  Woodhouse,  5  Redf.  131  ; 
dissenting  opinion  in  Matter  of  Nicho/s,  54  N.  Y.  62,  70-74. 
Proceedings  for  opening  of  a  street  under  the  charter  of  the 
city  of  New  York  are  special  proceedings  wherein  a  final  judg- 
ment is  a  conclusive  adjudication  of  the  rights  of  all  parties  in- 
terested. Matter  of  the  Opening  of  i6jd  Street,  61  Hun,  365,  40 
St.  Rep.  684,  appeal  dismissed,  131  N.  Y.  569.  An  application 
for  an  order  appointing  commissioners  to  appraise  the  damages 
caused  by  the  extension  of  a  street  is  a  special  proceeding  from 
the  order  made  in  which  an  appeal  may  be  taken.  Matter  of 
South  Market  St.,  in  JoJinstoivn,  80  Hun,  246. 

Proceedings  for  the  removal  of  a  justice  of  the  peace  are  special 
proceedings,  and  the  order  therein  is  a  final  order  affecting 
a  substantial  right.  Matter  of  King,  130  N.  Y.  602.  An  applica- 
tion to  strike  names  from  the  registry  of  v^oters,  under  the  Elec- 
tion Law,  is  regarded  as  a  special  proceeding  in  flatter  of  the 
Registration  of  Lyman  C.  JFard,  48  St.  Rep.  613-619.  An  order 
appointing  commissioners  of  appraisal  under  the  Condemna- 
tion Law  is  an  order  made  in  a  special  proceeding.  Matter  of 
Broadxuay  and  jth  Av.  R.   Co.,  69  Hun,  275. 

An  application  to  the  Special  Term  under  §  11  of  article 
I  of  the  General  Railroad  Law  (ch.  565,  Laws  1890),  by  a  rail- 
road for  authority  to  construct  its  road  upon  a  street  in  an  in- 
corporated village,  is  a  special  proceeding.  Matter  of  Lima,  etc., 
R.  Co.,  68  Hun,  252.  It  is  said  in  the  opinion,  that  the  defini- 
tion of  a  special  proceeding  under  the  Code  does  not  purport  to 
be  exhaustive  ;  it  declares  that  certain  prosecutions  are  special 
proceedings,  but  it  does  not  exclude  all  other  proceedings  from 
the  same  category.  Citing  Renns.  &  Saratoga  R.  Co.  v.  Davis,  55 
N.  Y.  145;  Matter  of  fetter,  78  N.  Y.  601  ;  Matter  of  Long, 
39  St.  Rep.  892  ;  Matter  of  Ho/den,  126  N.  Y.  589. 

Condemnation  proceedings  by  a  street  surface  railroad  corpo- 
ration to  extend  its  lines  are  not,  in  the  strict  sense  of  the  term, 
condemnation  proceedings  to  acquire  title  to  land,  but  are  re- 
garded as  special  proceedings.  LLornellsville,  etc.,  R.  Co.  v.  N. 
Y.,L..  E.  &  W.  R.  Co.,  83  Hun,  407-412,  citing  Matter  of  L.ock- 
port  &  B.  R.  R.  Co.,  77  N.  Y.  557  ;  Buffalo,  etc.,  R.  Co.  v.  N.  V. 
L.  E.  &  W.  R.  Co.,  72  Hun,  583. 


1 8  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 


Art.  3.     Some  Special  Proceedings  Enumerated. 


Query.  As  to  whether  an  apphcation  to  the  Supreme  Court 
to  appoint  a  successor  to  a  deceased  testamentary  trustee,  is  a 
special  proceeding  ;  see  Losey  v.  Stanley,  83  Hun,  420,  reversed 
without  passing  on  this  question,  147  N.  Y.  560.  A  proceeding 
instituted  by  a  trustee  of  a  trust  fund  for  leave  to  resign,  and 
for  leave  to  procure  the  appointment  of  a  new  trustee,  is  a  spe- 
cial proceeding.     Matter  of  Holdcn,  126  N.Y.  589. 

An  order  by  a  justice  of  the  Supreme  Court,  refusing  to  revoke 
an  approval  theretofore  given  by  him  to  an  order  of  the  State 
Commission  in  Lunacy,  is  not  an  order  in  a  special  proceeding. 
It  is  not  the  prosecution  for  the  enforcement  or  protection  of  a 
right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment  of 
a  public  offence.  Matter  of  the  Application  for  an  Order  Vacat- 
ing the  Approval  of  the  Order  Directed  by  the  State  Commission 
in  Lunacy  to  the  Board  of  Commissioners  of  Charities  and  Correc- 
tions in  Kings  County,  76  Hun,  74. 

Proceedings  to  enforce  a  claim  against  the  estate  of  a  decedent, 
disputed,  and  referred  under  the  statute,  are  no  longer  special 
proceedings  under  the  Code.  Lee  v.  Lee,  85  Hun,  588.  Sum- 
mary proceedings  are  especially  designated  as  special  proceed- 
ings by  §  2235  of  the  Code.  Dorsehel  v.  Burkly,  18  Misc.  240. 
A  proceeding  to  change  the  place  of  trial  of  a  criminal  action 
is  a  matter  outside  of  that  action,  and  not  a  necessary  part  of 
the  criminal  action,  and  is  within  the  definition  of  the  Code  of 
a  special  proceeding.  Peo.  v.  McLaiiglilin,  2  App.  Div.  408. 
The  taking  of  property  in  a  street  widening  proceeding  by 
grade  crossing  commissioners  in  Buffalo  is  a  special  proceeding. 
Matter  of  Grade  Crossing  Commissioners,  20  App.  Div.  271. 
Proceedings  taken  under  the  General  Municipal  Law  (Laws 
1892,  ch.  685,  §  3),  by  resident  freeholders  of  a  village,  who  claim 
that  its  ofificers  are  unlawfully  expending  the  moneys  raised  by 
taxation  therein,  and  ask  for  an  investigation,  is  a  special  pro- 
ceeding. Peo.  ex  rcl.  Guibord  v.  Kellogg,  22  App.  Div.  177, 
citing  Matter  of  Cooper,  22  N.  Y.  6'];  Matter  of  Reyers,  72  N.  Y. 
I  ;  Marvin  v.  Marvin,  78  N.  Y.  541  ;  Matter  of  King,  130  N.  Y. 
602-606;  Matter  of  Emmett,  150  N.  Y.  538-541. 

A  proceeding  taken  by  the  city  of  New  York  under  the  Con- 
solidation Act  to  acquire  lands  under  the  right  of  eminent  do- 
main is,  within  the  definition  of  the  Code,  a  special  proceeding, 
and  should  be   heard   as  such   proceedings  are  ordinarily  heard> 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  I9 

Art.  3.     Some  Special  Proceedings  Enumerated. 

although  no  particular  method  of  procedure  is  prescribed  by  that 
act.     Matter  of  the  Mayor,  22  App.  Div.  124. 

In  Matter  of  Emniett,  150  N.  Y,  538,  it  was  held  that  an  order 
made  under  the  Election  Law  (Laws  1896,  ch.  909,  §  56),  review- 
ing the  determination  of  the  filing  officer  upon  a  contested  cer- 
tificate of  nomination,  is  a  special  proceeding. 

In  the  Pco.  v.  St.  Nicholas  Bank  of  N.  V.,  150  N.  Y.  563,  it  was 
held  that  an  order  of  the  Special  Term  overruling  exceptions  to 
the  report  of  a  referee  appointed  under  the  statute  (2  R.  S.  45, 
as  amended  by  ch.  373,  Laws  1862),  to  determine  a  controversy 
between  a  claimant  and  the  receiver  of  a  bank,  was  not  a  special 
proceeding  within  the  provisions  of  the  Constitution.  Citing  Peo. 
V.  Am.  L.  &  T.  Co.,  150  N.  Y.  117,  holding  that  an  order  of  the 
appellate  division,  affirming  an  order  directing  the  permanent 
receiver  of  a  corporation  appointed  by  final  judgment  in  the 
action,  to  pay  the  claim  of  a  creditor  of  the  corporation,  was  not 
an  order  finally  determining  the  action  or  special  proceeding. 

Proceedings  taken  to  acquire  land  by  the  city  of  Brooklyn, 
under  ch.  481,  Laws  1892,  are  special  proceedings.  Matter  of  t he- 
Application  of  the  City  of  Brooklyn  for  Authority  to  Acquire  Prop- 
erty from  the  Long  Island  Water  Supply  Co.,  148  N.  Y.  107. 

It  was  held  that  a  proceeding  by  the  attorney-general  under  ch. 
383  of  the  Laws  of  1897,  an  act  designed  to  prevent  monopolies 
in  articles  and  commodities  in  common  use,  for  an  order  for  the 
examination  of  witnesses  for  the  purpose  of  determining  whether 
an  action  should  be  commenced  under  the  act,  was  a  special 
proceeding.  Matter  of  the  Attorney-General,  22  App.  Div.  285. 
The  contrary  was  held,  however,  on  appeal,  155  N.  Y.  441,  and 
it  was  said  that  the  order  of  the  appellate  division  affirming  the 
order  vacating  the  order  for  the  examination  of  witnesses  and 
granted  ex  parte,  by  a  justice  of  the  Supreme  Court  under  section 
5  of  the  act  to  prevent  monopolies,  was  not  an  order  finally  de- 
termining a  special  proceeding.  Citing  Rochester  Lamp  Co.  v. 
BrigJiam,  i  App.  Div.  490,  to  the  point  that  an  order  for  the  ex- 
amination of  witnesses  before  trial,  but  after  the  action  brought, 
was  clearly  an  order  in  an  action.  The  court  also  cited  to  the 
same  point.   Van  Arsdalc  v.  King,  155  N.  Y.  325. 

In  Peri  v.  N.  V.  C.  R.  R.  Co.,  1 52  N.  Y.  521,  it  is  held  that  a  pro- 
ceeding by  an  attorney  to  enforce  his  lien  upon  his  judgment  is 
a  special  proceeding  even  though  entitled  in  the  action. 


20  SPECIAL    PROCEEDINGS    GENERALLY    CONSIDERED. 


Art.  4.     Costs  in  Special  Proceedings. 


ARTICLE  IV. 

Costs  in  Special  Proceedings.    §§  3240,  3258,  3259,  3279. 
§3240.    [Am'd,   1881.]    Costs;  in  a  special  proceeding. 

Costs  in  a  special  proceeding,  instituted  in  a  court  of  record,  or  upon  an  appeal  in 
a  special  proceeding,  taken  to  a  court  of  record,  where  the  costs  thereof  are  not 
specially  regulated  in  this  act,  may  be  awarded  to  any  party,  in  the  discretion  of  the 
court,  at  the  rates  allowed  for  similar  services,  in  an  action  brought  in  the  same  court, 
or  an  appeal  from  a  judgment  taken  to  the  same  court,  and  in  like  manner. 

§  3258.  When  defendant  entitled  to  increased  costs. 

In  either  of  the  following  cases,  a  defendant,  in  whose  favor  a  final  judgment  is 
rendered,  in  an  action  wherein  the  complaint  demands  judgment  for  a  sum  of  money 
only,  or  to  recover  a  chattel ;  or  a  final  order  is  made,  in  a  special  proceeding  instituted 
by  a  State  writ,  is  entitled  to  recover  the  costs,  prescribed  in  §  3251  of  this  act,  and 
in  addition  thereto,  one-half  thereof : 

1.  Where  the  defendant  is  or  was  a  public  officer,  appointed  or  elected  under  the 
authority  of  the  State,  or  a  person  specially  appointed,  according  to  law,  to  perform 
the  duties  of  such  an  officer;  and  the  action  or  special  proceeding  was  brought  by 
reason  of  an  act,  done  by  him  by  virtue  of  his  office,  or  an  alleged  omission  by  him, 
to  do  an  act,  which  it  was  his  official  duty  to  perform. 

2.  Where  the  action  was  brought  against  the  defendant,  by  reason  of  an  act  done, 
by  the  command  of  such  an  officer  or  person,  or  in  his  aid  or  assistance,  touching  the 
duties  of  the  office  or  appointment. 

3.  Where  the  action  was  brought  against  the  defendant,  for  taking  a  distress,  making 
a  sale,  or  doing  any  other  act,  by  or  under  color  of  authority  of  a  statute  of  the  State. 

But  this  section  does  not  apply,  where  an  officer,  or  other  person,  specified  herein, 
unites  in  his  answer  with  a  person  not  entitled  to  such  additional  costs. 

2  R.  S.  616,  §  24. 

§  3259.  Increased  disbursements  not  allowed. 

The  increase,  specified  in  the  last  section,  does  not  extend  to  the  disbursements ; 
and  an  officer,  witness,  or  juror,  is  not  entitled  to  any  other  fees  in  the  action,  except 
the  single  fee  allowed  by  law  for  his  services. 

§  3279.  This  title  applies  to  special  proceedings. 

The  foregoing  sections  of  this  title  apply  to  a  special  proceeding  instituted  in  a 
court  of  record,  in  like  manner  as  to  an  action;  for  which  purpose,  the  prosecuting 
party,  other  than  the  people,  or,  where  the  special  proceeding  is  instituted  in  the 
name  of  the  people  upon  the  relation  of  a  private  corporation  or  individual,  the  re- 
lator is  deemed  a  plaintiff,  and  the  adverse  party   a  defendant. 

The  allowance  of  costs  in  special  proceedings  rests  in  the  dis- 
cretion of  the  court,  except  when  the  right  to  them  is  expressly 
given  by  statute.  Matter  of  Potter,  8  State  Rep.  261.  Costs  in 
special  proceedings  are  in  the  discretion  of  the  tribunal  hearing 
and  deciding  the  case.  If  allowed,  they  must  be  at  the  rate 
allowed  for  similar  proceedings  in  civil  actions.  People  v.  Fire 
Commissioners,  5  Abb.  N.  C.  144;  Matter  of  Protestant  Episcopal 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  21 

Art.  4.     Costs  in  Special  Proceedings. 

School,  86  N.  Y.  396;  24  Hun,  367.  But  no  costs  are  allowable 
in  proceedings  for  a  criminal  contempt.  People  v,  Gilmore,  88 
N.  Y.  626.  A  court  has  no  power  to  grant  allowances  in  special 
proceedings;  it  can  only  allow  costs  at  the  rates  allowed  for  sim- 
ilar services  in  an  action  brought  in  the  same  court,  and  in 
like  manner.  Matter  of  Simpson,  26  Viwn,  (^$g.  In  proceedings 
to  punish  for  a  contempt,  where  the  party  acted  in  good  faith 
and  in  accordance  with  what  he  believed  to  be  his  duty,  only 
motion  fees  and  disbursements  can  be  taxed  as  costs.  People  v. 
Cooper,  20  Hun,  486. 

Where  proceedings  are  instituted  by  a  railroad  company  under 
the  laws  of  this  State,  and  after  report  by  commissioners  making 
their  a^vard,  and  before  confirmation,  the  railroad  moves  for  leave 
to  discontinue  and  abandon  the  proceedings,  it  is  within  the 
legitimate  power  of  the  court  in  granting  it  to  annex  such  terms 
to  go  with  the  favor,  as,  under  the  circumstances,  justice  and  fair- 
ness to  the  parties  require.  The  terms  upon  which  the  motion 
should  be  granted  are  within  the  discretion  of  the  court.  While 
the  provisions  of  the  statute  relating  to  extra  allowances  do  not 
apply  to  special  proceedings,  and  such  an  allowance  cannot  be 
made  under  an  order  giving  costs,  but  in  such  cases  the  limita- 
tions "  for  similar  services,  as  in  actions,"  controls,  yet  that 
restriction  has  no  application  on  a  motion  for  favor.  The  court 
in  granting  such  a  motion  is  not  restricted  to  costs  and  disburse- 
ments as  a  condition.  A^.  K,  W.  S.  &  B.  R.  R.  Co.  v.  Thorne^ 
I  How.  (N.  S.)  190.  A  proceeding  under  the  General  Railroad 
Act  is  a  special  proceeding,  but  is  more  analogous  in  its  purpose 
and  scope  to  an  action  than  to  a  motion,  and  the  court  is  justified 
in  allowing  full  costs  as  in  an  action.  Matter  of  Rensselaer  & 
Saratoga  R.  R.  Co.  v.  Davis,  55  N.  Y.  145.  The  general  rule  is, 
that,  in  proceedings  to  acquire  land  under  the  General  Railroad 
Act,  costs  are  to  be  awarded  under  the  provisions  of  this  section, 
it  being  a  special  proceeding.  Matter  of  Lackawanna,  etc.,  R.  R. 
Co.,  26  Hun,  592.  Where  commissioners  were  appointed  with- 
out opposition,  and  a  hearing  had  at  which  witnesses  sub- 
poenaed by  the  landowner  were  sworn  and  examined  as  to  the 
value  of  the  land,  it  was  held  there  was  no  issue  made,  and  as 
no  question  of  fact  had  been  raised  or  tried,  no  trial  fee  should 
be  allowed.  Where  an  order  confirming  a  referee's  report  on 
reference  out  of  Surrogate's  Court,  directed  that  defendant  have 


22  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 

Art.  4.     Costs  in  Special  Proceedings. 

judgment  for  costs  and  disbursements  as  in  an  action,  it  is  not 
error  for  the  clerk  to  tax  costs  as  in  an  action.  The  court  has 
power  to  award  costs  "  as  in  actions  brought  in  the  same  court." 
Hearn  v.  Sullivan,  13  Abb.  N.  C.  371. 

It  was  held  in  Matter  of  Durham,  a^c^  Super.  Ct.  487,  that  the 
Code  leaves  the  question  of  awarding  or  denying  costs  in  special 
proceedings  to  the  discretion  of  the  court.  The  discretion  con- 
templated by  the  law  is  not  a  mere  unreflecting  caprice,  exercised 
in  violation  of  right,  but  a  judicial  discretion  to  be  used  accord- 
ing to  the  rules  of  a  court  of  equity.  Proceedings  taken  by 
creditors  and  others  under  the  Assignment  Acts  are  special  pro- 
ceedings (citing  §§  3333,  3334,  3343,  sub.  20),  and  costs  may 
be  allowed  in  them  as  in  a  special  proceeding.  Matter  of  Thorn, 
10  Daly,  71.  Where,  upon  an  appeal  from  the  decision  of  a  sur- 
rogate, denying  a  petition  to  compel  the  payment  of  legacies,  on 
the  ground  that  the  claim  is  barred  by  the  Statute  of  Limitations, 
the  General  Term  afifirms  the  judgment,  it  may,  under  this  sec- 
tion, allow  costs  at  the  same  rates  allowed  for  similar  services  in 
an  action  brought  in  the  same  court  in  the  same  manner.  Cole  v. 
Terpenning,  27  Hun,  iii.  But  on  an  appeal  from  an  order  dismiss- 
ing a  petition  and  citation  requiring  the  respondents  to  show 
cause  why  they  should  not  file  an  inventory,  costs  were  allowed 
of  a  motion,  as  in  similar  proceedings  in  the  Supreme  Court. 
Walsh  v.  Van  Allen,  36  Hun,  629.  Where  an  order  of  a  surrogate 
granting  leave  to  issue  execution  on  a  judgment  after  the  death  of 
the  judgment  debtor  is  af^rmed  with  costs  at  General  Term,  the 
successful  party  is  entitled  to  enter  and  docket  a  judgment  of 
affirmance  establishing  the  surrogate's  decree  and  awarding  costs 
as  in  an  action  for  similar  services,  and  to  issue  execution  thereon. 
Wadley  v.  Davis,  38  Hun,  186. 

The  fact  that  a  matter  is  a  special  proceeding  docs  not  pre- 
vent the  allowance  of  necessary  expenditures  as  disbursements. 
Matter  of  Department  of  Public  Parks,  27  Hun,  305.  Upon  the 
coming  in  of  a  referee's  report  dismissing  the  petition  of  a  third 
person  praying  that  a  judgment  of  divorce  be  vacated,  and  award- 
ing to  plaintiff  $350  as  compensation  for  disbursements  and 
counsel  fees,  to  be  paid  by  the  petitioner,  it  was  held  that,  in  so 
far  as  the  order  awarded  the  said  compensation  to  the  plaintiff, 
such  compensation  being  neither  the  costs  of  a  motion,  nor  costs 
of  a  special  proceeding,  but  being  a  gross  sum  allowed  as  compen- 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  23 

Art.  4.     Costs  in  Special  Proceedings. 

sation  for  disbursements  and  counsel  fees  in  the  proceeding,  it 
should  be  reversed.  Simmons  v.  Simmons,  32  Hun,  551.  This 
section  does  not  regulate  the  costs  in  summary  proceedings  to 
recover  the  possession  of  land  before  a  justice  of  the  peace  on 
reversal  by  the  county  court.  Sections  2260  and  3066  granting 
costs,  as  of  course,  are  applicable.  Harrison  v.  Swart,  34  Hun, 
259.  The  costs  on  reversal  of  an  order  directing  a  commitment 
for  contempt  in  supplementary  proceedings  are  but  $10  and  dis- 
bursements.   Jones  V.  Sherman,  8  State  Rep.  344. 

In  proceedings  instituted  under  chapter  338,  Laws  of  1858. 
where  the  Special  Term  vacated  the  assessment  with  costs  to  the 
applicant,  from  which  order  no  appeal  was  taken,  and  costs  were 
stricken  out  by  the  General  Term,  on  appeal  from  an  order  of  the 
Special  Term  denying  an  order  to  strike  out,  it  M'as  held  that  the 
applicant  was  entitled  to  costs  at  the  rate  allowed  for  similar 
services  in  actions,  and  the  order  of  the  General  Term  reversed. 
Matter  ofjettcr,  78  N.  Y.  601.  Costs  are  allowable  on  an  appli- 
cation to  enforce  the  liability  imposed  by  the  statute,  declaring 
the  assignee  of  a  cause  of  action,  or  one  beneficially  interested  in 
the  recovery,  liable  for  the  costs  of  an  action  brought  by  him  in 
the  name  of  another,  as  in  a  special  proceeding.  Marvin  v. 
Marvin,  78  N.  Y.  541.  Proceedings  for  the  obtaining  of  surplus 
moneys  arising  from  statutory  foreclosure  of  mortgage  is  a  special 
proceeding,  and  the  costs  allowed  should  be  necessary  disburse- 
ments and  motion  costs.  Matter  of  Gibbs,  58  How.  502.  In 
Elwell  V.  Robbins,  43  id.  108,  it  was  held  that  two  motion  fees 
might  be  allowed  in  such  proceedings,  one  on  appointment  of 
referee,  the  other  on  confirmation  of  the  report.  That  only  dis- 
bursements and  motion  costs  are  allowable,  is  held  in  Wellington  v. 
Ulster  Ice  Co.,  5  Week.  Dig.  104  ;  Hclraukw.  Cokvell,  2  Law  Bull.  39, 
and  McDermott  v.  Hennesy,  9  Hun,  59.  Costs  may  be  allowed  on 
habeas  eorpus  under  this  section,  although  they  will  not  be  granted 
if  reasonable  cause  for  the  writ  exists,  but  when  on  Jiabeas  corpus 
for  an  infant  a  reference  is  ordered,  witnesses  are  examined, 
and  a  decision  rendered  upon  a  hearing,  costs  will  be  allowed  in 
the  discretion  of  the  court.  Matter  of  Barnett,  11  Hun,  468. 
Where  relator  was  arrested  upon  an  execution,  and  the  arrest 
was  questioned  on  Jiabeas  corpus,  it  was  held  that  only  costs  for 
proceedings  after  petition,  and  for  trial  and  the  disbursements 
could   be   taxed.     Midler  v.  Bozce,  4  Law  Bull.  10.     Under  the 


24  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 


Art.  4.     Costs  in  Special  Proceedings. 


former  Code  costs  were  allowed  on  summary  proceedings  to  com- 
pel a  party  to  support  a  relative  when  brought  by  certiorari  from 
the  Court  of  Sessions  to  the  Supreme  Court    for  review.     Havi- 
landv.  White,  7  How.  154.     The  following  decisions  were  made, 
also,  under  the  old  Code  as  to  costs  on  certiorari.     In  People  v. 
McDonald,  69  N.  Y.   362  ;  People  v.  Board  of  Police,  39  id.  506  ; 
People  V.  Village  of  Nelliston,  79  id.  638,  it  is  held    costs  are  not 
allowable  on  a  common-law  certiorari.     In  People  v.  Van  Alstyne, 
3  Keyes,  35  (1866),  it  is  said  :  "  There  was  formerly  some  diversity 
of  opinion  as  to  the  authority  of  the  courts  to  award  costs  on 
appeals  to  the  prevailing  party  on  a  common-law  certiorari.     We 
have  held  that  these  cases  belong  to  the  class  of  special  proceed- 
ings, embraced  in   the  third   section  of  the  Code,  and  that  such 
costs  may  be  awarded  in  the  appellate  tribunal."    Citing  People  v. 
Wheeler,  21    N.  Y.  86  ;  People  v.  Stilwell,    19  id.   532;  People   v. 
Commissioners  of  Schodack,  27  How.  158;  People  v.  Flake,   14  id. 
527.     In  People  v.  Commissioners  of  Taxes  afid  Assessments,  76 
N.  Y.  64  (1879),  it  is  said,  as  to  the  questions  of  costs  on  a  com- 
mon-law certiorari,  there  is  a  lamentable  conflict  of  authority,  but 
it  has  been  settled  in  this  court,  as  announced  in  People  v.  Mc- 
Donald,  69  N.  Y.  362,  which  holds  costs  are  not  allowable  on  a 
common-law  certiorari.     In  People  v.  Village  of  Nelliston,  79  N.  Y. 
638,  supra  (1879),  it  is  sdiid,  per  curiam  :  "  We  have  carefully  con- 
sidered the  question  of  costs,  and  are  of  the  opinion  that  the  re- 
spondents should  not  have  costs  ;  their  allowance  was  not  in  con- 
formity with    our  actual   decision.     The   costs  on    appeal    here 
claimed  were  in  a  certiorari  proceeding,  and  it  matters  not  in  what 
form  the  proceeding  came  before  us,  whether  upon  appeal  from 
a  judgment  or  from  an  order  superseding  the  writ.     As  we  have 
repeatedly  decided,   the  costs  are   not  allowable.     In  People  v. 
Smith,  13  Hun,  227  (1878),  the  Supreme  Court  held  the  award  of 
costs  to  be  discretionary  with  the  court,  reviewing  the  cases  then 
decided  in  the  Court  of  Appeals.     In  People  y.  Smith,  24  Hun, 
66,  motion  costs  were  allowed  at  General  Term  without  question 
or  discussion.     ?)ut  the  question  seems  to  be  put  at  rest  in  People 
ex  rel.  Smith  v.  Astcn,   loi   N.  Y.  651  :  s.  C.    i    State   Rep.    37; 
where,  on  certiorari  \.o  review  the  action  of  assessors  under  chap- 
ter 269,  Laws  of  1880,  which  relieves  them  from  costs  below,  ex- 
cept in  case  of  bad  faith,  the  Court  of  Appeals  held  that  on  an 
appeal  from  such  a  determination  which  was  heard  and  deter- 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  25 


Ajt.  4.     Costs  in  Special  Proceedings. 


mined  in  like  manner  as  an  order,  costs  were  to  be  given  or  with- 
held in  the  discretion  of  the  court,  and  denied  a  motion  to  amend 
the  remittitur  by  striking  out  the  allowance  of  costs.  Proceed- 
ings to  compel  an  accounting  by  a  special  guardian  appointed  to 
sell  an  infant's  real  property  constitute  a  special  proceeding,  and 
where  a  question  of  facts  is  referred,  the  referee's  fees  might, 
under  the  former  statute,  be  allowed  as  costs.  Spelman  v.  Terry, 
74  N.  Y.448.  The  costs  to  be  allowed  and  which  are  recoverable 
upon  an  appeal  from  an  order  granting  a  peremptory  mandamus, 
where  such  order  is  affirmed,  are  under  §  3240,  and  in  the  discre- 
tion of  the  court,  are  the  same  costs  which  are  given  on  an  appeal 
from  a  judgment.  People  ex  rcl.  Bray  v.  Supervisors  of  Ulster^ 
65  How.  327.  Upon  a  peremptory  mandamus  being  denied,  no 
alternative  writ  having  been  granted,  the  costs  are  in  the  discre- 
tion of  the  court,  and  can  only  be  granted  at  the  same  rate  as  on 
motion  in  a  civil  action.  People  v.  N,  Y.  Produce  Exchange,  64 
How.  523. 

On  proceeding  for  discharge  of  debtor  from  imprisonment  on 
execution,  there  can  be  no  costs  to  respondent  before  notice,  as 
the  notice  of  the  application  is  not  only  the  institution  of  the 
proceedings,  but  the  only  notice  of  trial.  He  is  entitled  to  costs 
after  notice,  and  as  the  parties  when  in  court  are  there  for  trial,  a 
trial  fee  should  be  allowed  whether  the  petition  is  dismissed  for 
default  in  appearing  to  prosecute  or  upon  the  merits.  Matter  of 
Davis,  2  Law  Bull.  96.  A  proceeding  under  the  General  Rail- 
road Act  by  one  railroad  corporation  to  secure  a  crossing  over 
the  track  of  another  railroad  is  a  special  proceeding,  and  the 
costs  therein  are  in  the  discretion  of  the  court.  Matter  of  Cort- 
land, etc..  Horse  Railroad  Company.,  98  N.  Y.  336, 

In  summary  proceedings  to  recover  the  possession  of  real  prop- 
erty, a  landlord  being  a  non-resident,  but  owning  property  in  the 
city  and  county  of  New  York,  cannot  be  required  to  file  security 
for  costs.  The  proceeding  is  not  such  a  special  proceeding 
instituted  in  a  court  of  record  as  is  contemplated  by  §  3279. 
It  is  a  proceeding  before  a  magistrate.  Hasler  v.  fohnston,  59 
How.  432. 

Power  to  award  costs  in  special  proceedings  is  fixed  and 
limited  by  §  3240,  and  under  it  a  court  has  no  power  to 
grant  extra  allowances,  it  can  only  award  costs  in  its  discretion 
at  the  rate  allowed  for  similar  services  in  an  action  brought  in 


26  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 


Art.  4.     Costs  in  Special  Proceedings. 


the    same    court.      Matter  of    Hoidcn,   126    N.  Y.    589,    cited, 
Matter  of  City  of  Brooklyn,  148  N.  Y.  107. 

Although  proceedings  supplementary  to  execution  are  distinct 
special  proceedings,  under  §  2433,  yet  the  method  of  review- 
inf  an  order  made  therein  and  the  practice  relating  thereto 
are  the  same  as  if  an  order  had  been  made  in  an  ordinary  action. 
Upon  reversal  on  appeal  from  the  order  adjudging  defendant  guilty 
of  contempt  made  on  a  motion  in  supplementary  proceedings, 
the  costs  are  limited  to  $10  and  disbursements.  Jones  v.  Sher- 
man, 18  Abb.  N.  C.  461,  II  Civ.  Proc.  416,  citing  Phipps  v.  Car- 
man, 26  Hun,  518  ;  People  v.  Cooper,  10  Week.  Dig.  ']']. 

Section  3240  refers  only  to  such  cases  as  are  not  otherwise 
provided  for  in  the  Code.     Matter  of  Wilson,  103  N.  X .  374. 

Where  an  appeal  is  taken  from  an  order,  judgment,  or  deter- 
mination made  in  a  proceeding  instituted  under  chapter  269  of 
the  Laws  of  1880  for  the  review  and  correction  of  an  erroneous, 
illegal  or  unequal  assessment,  costs  are  to  be  given  or  withheld 
in  the  discretion  of  the  court  under  §  3239  of  the  Code.  It 
seems  that  costs  cannot  be  taxed  as  of  course  under  § 
3240.  People  ex  rel.  Warren  v.  Carter,  46  Hun,  444,  followed, 
People  ex  rel.  Smith  v.  Commissioners  Taxes  and  Assessments  of 
the  City  of  New  York,  loi  N.  Y.  651.  The  question  of  costs 
does  not  seem  to  have  been  passed  upon  by  the  Court  of  Ap- 
peals in  Remsen  v.  Wheeler,  105  N.  Y.  576. 

A  proceeding  to  acquire  an  easement  in  lands  for  the  con- 
struction of  a  sewer  in  a  city  is  a  special  proceeding,  and  costs 
may  be  allowed  in  the  discretion  of  the  court.  Matter  of  Wells 
Avenue  Sewer,  Afi  Hun,  534. 

Where  there  has  been  a  trial  of  an  issue  raised  on  a  proceed- 
ing to  acquire  land  for  public  purposes  and  an  appeal  is  taken 
from  the  order  granting  the  petition,  the  case  is  within  §  3240 
and  costs  may  be  properly  allowed  as  in  an  action.  Matter  of 
Applieation  of  Long,  39  St.  Rep.  892. 

An  application  at  Special  Term  under  §  1 1  of  Article  i  of 
the  General  Railroad  Law  by  a  railroad  company  for  author- 
ity to  construct  a  road  upon  a  street  in  an  incorporated  village  is 
a  special  proceeding,  and  costs  as  in  an  action  are  allowable  in 
the  discretion  of  the  court.  Matter  of  Application  of  Lima  & 
Honeoyc  Falls  R.  R.  Co.,  68  Hun,  252,  52  St.  Rep.  186,  followed 
and  approved  in  Hornellsville  R.  R.  Co.  v.  N'.  )'..  A.  P.,  etc.,  R.  R. 


SPECIAL   PROCEEDINGS   GENERALLY    CONSIDERED.  2/ 

Art.  4.     Costs  in  Special  Proceedings. 

Co.,  83  Hun,  407,  citing  Matter  of  L.  &  B.  R.  R.  Co.,  yj  N.  Y. 
557;  Buffalo,  etc.,  R.  R.  Co.  v.  A^.  V.,  L.  £.,  etc.,  R.  R.  Co.,  72 
Hun,  583. 

An  application  for  a  peremptory  writ  of  mandamus  is  a  special 
proceeding  in  which  costs  are  discretionary.  Unless  the  Court 
of  Appeals  indicates  in  its  decision  that  it  intends  to  award 
costs  in  the  court  below,  the  costs  will  be  treated  as  of  that 
court  only.  People  ex  rel.  v.  N.  V.,  L.  E.  &  IV.  R.  R.  Co.,  47 
Hun,  43. 

It  is  a  settled  rule  of  practice  not  to  allow  costs  in  a  special 
proceeding  b)^  an  elevated  railroad  company  to  acquire  lands. 
Matter  of  Union  Elevated  R.  R.  Co.,  55  Hun,  163. 

In  proceedings  instituted  by  a  taxpayer  under  the  provisions 
of  §  4  of  chapter  907  of  Laws  of  1869,  as  amended  by  chapter 
283  of  Laws  of  1 87 1,  no  costs  can  be  awarded  by  a  county 
judge.     Matter  of  Petition  of  Hill  v.  Sheldon,  55  Hun,  44. 

Proceedings  by  a  receiver  of  taxes  to  compel  the  payment  of  a 
personal  tax  begun  by  petition  and  order  to  show  cause  is  a 
special  proceeding,  and  where  costs  are  allowed  by  the  court  to 
the  defendant  he  is  entitled  to  tax  costs  as  allowed  for  similar 
services  in  an  action.     McLane  v.  JepJison,  26  Abb.  N.  C.  40. 

Proceedings  for  leave  to  mortgage  trust  lands  are  special  pro- 
ceedings within  the  statute  as  to  costs,  and  where  objection  has 
been  made  and  it  has  been  referred  to  a  referee  to  take  proof  and 
report  thereon  and  a  hearing  has  been  had  before  him,  and  upon 
his  report  a  final  order  is  made,  it  is  a  trial  and  costs  before 
and  after  notice  of  trial  and  a  trial  fee  are  allowable.  Such  an 
order  is  a  final  order,  and  upon  appeal  from  it  costs  are  the  same 
as  upon  an  appeal  from  a  judgment  or  determination.  But 
printing  the  evidence  taken  before  the  referee  is  not  making  a 
case  within  the  statute  and  an  allowance  of  $20  therefor  is  un- 
authorized. Matter  of  Clarke,  27  Abb.  N.  C.  144,  distinguish- 
ing N.  V.  L.  &  W.  R.  R.  Co.,  26  Hun,  593,  following  Matter  of 
Jetter,  78  N.  Y.  601  ;  People  v.  City  Bank  of  Rochester,  96  N,  Y. 
32. 

Where  on  appeal  to  the  Court  of  Appeals  from  an  order  of  the 
General  Term  of  the  Supreme  Court  modifying  an  order  of 
Special  Term  made  upon  a  hearing  on  certiorari  to  review  an 
assessment,  the  order  at  both  the  General  and  Special  Terms  is 
reversed  by  the  Court  of  Appeals  and  the  assessment  vacated, 


28  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 

Art.  4.     Costs  in  Special  Proceedings. 

with  costs  to  the  relator,  in  all  the  courts,  the  relator  is  entitled 
not  merely  to  the  costs  at  General  Term  but  also  costs  on  appeal, 
and  costs  may  be  allowed  at  the  same  rates  as  for  similar  services 
in  an  action  brought  in  the  same  court.  People  v.  Pratt,  22  Civ. 
Pro.  294,   following  In  re  Holden,  126  N.  Y.  589. 

An  affirmance  by  the  General  Term  with  costs  of  an  order 
sustaining  the  action  of  excise  commissioners  in  refusing  to  grant 
a  license  and  dismissing  writ  of  certiorari  constitutes  a  direction 
by  the  court  that  the  respondent  recover  costs  of  the  appeal  as 
in  an  action. 

The  increased  costs  given  to  public  officers  by  §  3258  are 
not  limited  to  costs  incurred  in  the  court  of  original  jurisdiction, 
but  extend  to  costs  of  appeal.  Section  3248  which  requires  the 
certificate  of  the  judge  or  referee  to  entitle  a  party  to  increased 
costs  under  §  3258  applies  only  to  actions  and  has  no  appli- 
cation to  special  proceedings  where  costs  are  discretionary  and 
first  awarded  by  the  General  Term.  Wood  v.  Excise  Covnnis- 
sioners,  9  Misc.  507,   30  Supp,  344. 

While  §  3240  authorizes  an  award  of  costs  in  a  special  pro- 
ceeding at  the  same  rates  allowed  for  similar  services  in  an 
action,  it  does  not  empower  the  court  to  grant  extra  allowances. 
Matter  of  Application  of  City  of  Brooklyn,  88  Hun,  176,  citing 
Matter  of  Holden,  126  N.  Y.  589. 

In  148  N.  Y.  107,  Matter  of  City  of  Brooklyn  {supra)  was 
af^rmed.  It  was  held,  that  in  the  absence  of  a  statute  providing 
for  costs  and  allowances  for  expenses  none  can  be  recovered. 
That  the  authority  given  by  §  3372  of  the  Code  granting 
an  extra  allowance  to  defendant  in  condemnation  proceedings 
does  not  apply  or  extend  to  a  proceeding  taken  under  a  subse- 
quent special  statute.  That  the  right  to  costs  in  condemnation 
proceedings  taken  under  such  statute  containing  no  provisions 
for  costs  or  allowances  is  governed  by  §  3240  of  the  Code. 
This  matter  is  also  reported  in  10  Misc.  650. 
Proceedings  taken  by  grade-crossing  commissioners  of  Buffalo 
for  the  appointment  of  commissioners  is  a  special  proceeding, 
and  costs  rest  in  the  discretion  of  the  court.  Matter  of  Grade 
Crossing  Conunissioners,  17  App.  Div.  54  ;  see,  also.  Matter  of 
Grade  Crossing  Cojmnissioners,  20  App.  Div.  271. 

The  costs  of  an  investigation  into  the  financial  affairs  of  a 
village  under   Laws    1892,  ciiap.   685,  §  3,  if  any  are   awarded, 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  29 

Art.  5.     Appeals. 

must  be  restricted  by  force  of  §  3240  to  those  allowed  for 
similar  services  in  an  action.  When  the  first  opportunity  to  ob- 
ject to  the  costs  of  such  an  investigation,  or  to  raise  any  question 
as  to  the  amount,  is  afforded  by  the  service  or  publication  of  a 
final  order  awarding  costs,  a  party  who  then  objects  by  appeal 
cannot  be  held  guilty  of  laches,  or  be  considered  to  have  waived 
the  right  to  question  the  allowance  of  costs.  Matter  of  Tax 
Payers  of  Plattsburgh,  157  N.  Y.  78,  reversing  27  App.  Div.  353. 

ARTICLE  V. 

Appeals.  §§  1356,  1357,  1358,  1359,  1360,  1361,  190,  191. 

§  1356.  [Am'd,  1895.]  Appeal  frora  order  made  in  the  same 
court. 

An  appeal  may  be  taken,  to  the  appellate  division  of  the  Supreme  Court,  from  an 
order,  affecting  a  substantial  right,  made  in  a  special  proceeding,  at  a  special  term  or 
a  trial  term  of  the  Supreme  Court ;  or  made  by  a  justice  thereof,  in  a  special  proceed- 
ing instituted  before  him,  pursuant  to  a  special  statutory  provision;  or  instituted 
before  another  judge,  and  transferred  to  or  continued  before  him. 

L.  1854,  ch.  270,  §  I,  first  clause  (4  Edm.  681 ;   5  id.  133)  ;   L.  1895,  ^h-  94^' 

§  1357.  [Am'd,  1895.]  Id. ;  when  made  by  another  court  or 
judge. 

An  appeal  may  also  be  taken  to  the  appellate  division  of  the  Supreme  Court,  from 
an  order,  affecting  a  substantial  right,  made  by  a  court  of  record,  possessing  original 
jurisdiction,  or  a  judge  thereof,  in  a  special  proceeding  instituted  in  that  court, or 
before  a  judge  thereof,  pursuant  to  a  special  statutory  provision  ;  or  instituted  before 
another  judge,  and  transferred  to,  or  continued  before,  the  judge  who  made  the  final 
order.  But  this  section  does  not  apply  to  a  case  where  an  appeal  from  the  order,  to 
a  court,  other  than  the  appellate  division  of  the  Supreme  Court,  is  expressly  given 
by  statute. 

Substituted  for  part  of  Co.  Proc.  §  344;  L.  1S95,  ch.  946.     See  §  1342,  ante. 

§1358.     [Am'd,  1877.]     Preceding  order  may  be  reviewed. 

An  appeal,  authorized  by  this  title,  brings  up  for  review,  any  preceding  order 
made  in  the  course  of  the  special  proceeding,  involving  the  merits,  and  necessarily 
affecting  the  final  order  appealed  from,  which  is  specified  in  the  notice  of  appeal. 

See  Co.  Proc.  §  329. 

g  1359.    Limitation  of  time  to  appeal. 

An  appeal,  authorized  by  this  title,  must  be  taken  within  thirty  days  after  service 
of  a  copy  of  the  final  order,  from  which  it  is  taken,  with  a  written  notice  of  the  entry 
thereof,  upon  the  appellant;  or,  if  he  appeared,  upon  the  hearing,  by  an  attorney-at- 
law  or  an  attorney-in-fact,  upon  the  person  who  so  appeared  for  him. 

From  Id.  §  332.     See  L.  1854,  ch.  270,  §  2. 

g  1360.  Stay  of  proceedings  ;  hearing  of  appeal ;  decision  there- 
upon. 

The  provisions  of  title  fourth  of  this  chapter,  relating  to  perfecting  an  appeal  from 


30  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED. 

Art.   5.     Appeals. 

an  order,  taken  as  therein  prescribed ;  to  staying  the  execution  of  the  order  appealed 
from;  to  hearing  the  appeal;  and  to  the  entry  and  enforcement  of  the  order  made 
upon  the  appeal,  apply,  where  an  appeal  is  taken,  as  prescribed  in  this  title,  e.xcept  as 
otherwise  specially  prescribed  by  law. 

This  section  refers  to  §§  1351,  1353,  1354.  and  1355,  ante.  See,  also,  §§  1313  and 
1 314,  attte. 

%  1361.  This  title  qualified.  Application  of  provisions  relating 
to  actions. 

This  title  does  not  confer  the  right  to  appeal  from  an  order,  in  a  case,  where  it  is 
specially  prescribed  by  law,  that  the  order  cannot  be  reviewed.  The  proceedings 
upon  an  appeal,  taken  as  prescribed  in  this  title,  are  governed  by  the  provisions  of 
this  act,  and  of  the  general  rules  of  practice,  relating  to  an  appeal  in  an  action,  except 
as  otherwise  specially  prescribed  by  law. 

§  190.  [Am'd,  1895.]  The  jurisdiction  of  the  Court  of  Appeals 
in  civil  actions. 

The  Court  of  Appeals  has  exclusive  jurisdiction  to  review  upon  appeal  every  actual 
determination  made  prior  to  the  last  day  of  December,  eighteen  hundred  and  ninety- 
five,  at  a  General  Term  of  the  Supreme  Court,  or  by  either  of  the  superior  city  courts, 
as  then  constituted,  in  all  cases  in  which,  under  the  provisions  of  law  existing  on  said 
day,  appeals  might  be  taken  to  the  Court  of  Appeals.  From  and  after  the  last  day  of 
December,  eighteen  hundred  and  ninety-five,  the  jurisdiction  of  the  Court  of  Appeals 
shall,  in  civil  actions  and  proceedings,  be  confined  to  the  review  upon  appeal  of  the 
actual  determinations  made  by  the  appellate  division  of  the  Supreme  Court  in  either 
of  the  following  cases,  and  no  others : 

1.  Appeals  may  be  taken  as  of  right  to  said  court,  from  judgments  or  orders  finally  ' 
determining  actions  or  special  proceedings,  and  from  orders  granting  new  trials  on 
exceptions  where  the  appellants   stipulate  that  upon  affirmance,  judgment  absolute 
shall  be  rendered  against  them. 

2.  Appeals  may  also  be  taken  from  determinations  of  the  appellate  division  of 
the  Supreme  Court  in  any  department  where  the  appellate  division  allows  the  same, 
and  certifies  that  one  or  more  questions  of  law  have  arisen  which,  in  its  opinion 
ought  to  be  reviewed  by  the  Court  of  Appeals,  in  which  case  the  appeal  brings  up  for 
review  the  question  or  questions  so  certified,  and  no  other;  and  the  Court  of  Appeals 
shall  certify  to  the  appellate  division  its  determination  upon  such  questions. 

Co.  Proc.  §  II,  and  L.  1895,  ch.  946. 

^  191.  [Am'd,  1895,  1896.]  Limitations,  Exceptions,  and  Con- 
ditions. 

The  jurisdiction  conferred  by  the  last  section  is  subject  to  the  following  limitations, 
exceptions,  and  conditions : 

1.  No  appeal  shall  be  taken  to  said  court,  in  any  civil  action  or  proceeding  com- 
menced in  any  court  other  than  the  Supreme  Court,  county  court,  or  a  surrogate's  court, 
unless  the  appellate  division  of  the  Supreme  Court  allows  the  appeal  by  an  order  made 
at  the  term  which  rendered  the  determination,  or  at  the  next  term  after  judgment  is 
entered  thereupon,  and  shall  certify  that  in  its  opinion  a  question  of  law  is  involved 
which  ought  to  be  reviewed  by  the  Court  of  Appeals 

2.  No  appeal  shall  be  taken  to  said  court  from  a  judgment  of  affirmance  hereafter 
rendered  in  an  action  to  recover  damages  for  a  personal  injury,  or  to  recover  damages 
for  injuries  resulting  in  death,  or  in  an  action  to  set  aside  a  judgment,  sale,  transfer. 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  3 1 


Art.  5.     Appeals. 


conveyance,  assignment,  or  written  instrument  as  in  fraud  of  the  rights  of  creditors, 
when  the  decision  of  the  appellate  division  of  the  Supreme  Court  is  unanimous,  unless 
such  appellate  division  shall  certify  that  in  its  opinion  a  question  of  law  is  involved 
which  ought  to  be  reviewed  by  the  Court  of  Appeals,  or  unless  in  case  of  its  refusal  to 
so  certify,  an  appeal  is  allowed  by  a  judge  of  the  Court  of  Appeals. 

3.  The  jurisdiction  of  the  court  is  limited  to  the  review  of  questions  of  law. 

4.  No  unanimous  decision  of  the  appellate  division  of  the  Supreme  Court  that  there 
is  evidence  supporting  or  tending  to  sustain  a  finding  of  fact  or  a  verdict  not'directed 
by  the  court,  shall  be  reviewed  by  the  Court  of  Appeals. 

A  proceeding  to  punish  for  contempt  is  a  special  proceeding, 
original  in  its  character,  and  independent  of  the  proceeding  in 
which  it  arose.  Gibbs  v.  Prindle,  1 1  App.  Div.  470,  citing  Erie 
Railway  Co.  v.  Ramsey,  45  N.  Y.  637 ;  People  ex  rel.  Grajtt  v. 
Warner,  51  Hun,  53. 

In  People  v.  Young,  92  Hun,  373,  it  is  held  that  where  an  order 
was  made  in  a  special  proceeding,  although  in  a  court  of  special 
sessions,  it  might,  in  view  of  the  purpose  of  the  motion,  be 
deemed  to  be  made  in  a  civil  special  proceeding  as  distinguished 
from  a  criminal  special  proceeding,  and  to  be  appealable. 

The  Highway  Law  imposes  no  such  limitation  upon  the  right 
of  appeal  from  the  Special  Term  of  the  Supreme  Court  as  in  the 
case  of  the  county  court.     Matter  of  Barrett,  7  App.  Div.  482. 

An  appeal  from  an  order  made  in  special  proceedings,  like  an 
appeal  from  an  order  made  in  an  action,  lies  only  when  it  affects 
a  substantial  right.  Held,  that  an  order  that  a  writ  of  alternative 
mandamus  issue  is  not  appealable,  as  the  writ  of  alternative  man- 
damus is  in  the  nature  of  an  order  to  show  cause,  and  does  not 
affect  a  substantial  right.  People  ex  rel.  Ackennan  v.  Luuib,  6  App. 
Div.  26. 

An  order  adjudging  a  person  in  contempt  is  appealable  under 
§  1356  of  the  Code.  Section  2423  is  not  applicable  to  such  cases. 
Gibbs  V.  Prindle,  9  App.  Div.  29. 

As  the  Election  Law,  although  providing  for  a  review  of  the 
decision  of  the  filing  officer,  does  not  designate  the  method  of 
procedure  on  such  review,  it  may  be  had  upon  a  motion  made 
upon  petition  filed.  A  public  officer,  like  the  county  clerk,  has 
a  right  to  institute  proceedings  for  the  review  of  an  order  com- 
manding him  to  do  an  official  act  which  he  believes  to  be  in  vio- 
lation of  the  statutes  of  the  State,  and  the  fact  that  he  has  no 
pecuniary  interest  in  the  matter  does  not  affect  the  right.  Mat- 
ter of  Application  of  Cuddeback,  3  App.  Div.  103,  followed  in 
Matter  of  App  lit  at  ion  of  Williains,  3  App.  Div.  618. 


32  SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED, 

Art.   5.     Appeals. 

See,  as  to  when  an  order  in  election  cases  is  appealable,  Mat^ 
ter  of  Emmett,  9  App.  Div.  237,  150  N.  Y.  538. 

An  application  for  an  order  under  §  65  of  the  Election 
Law  overruling  the  decision  of  the  ofificer  with  whom  the  certifi- 
cate of  nomination  of  candidates  is  filed  as  to  the  validity 
thereof,  is  a  special  proceeding,  as  defined  by  the  Code.  An 
appeal  may  be  taken  from  an  order  affirming  or  overruling  the 
determination  of  such  an  officer  when  the  appeal  can  be  heard 
and  determined  in  due  season.     Matter  of  Mitc/ic/l,  81  Hun,  401. 

An  appeal  to  the  appellate  division  in  an  election  matter  will 
not  be  dismissed  where  it  involves  a  question  of  public  interest 
simply  because  the  time  has  passed  when  the  rights  of  the  parties 
to  the  appeal  can  be  affected  by  its  decision.  People  ex  rel. 
Spire  V.  General  Committee,  25  App.  Div.  339,  following  Matter 
of  Cnddeback,  3  App.  Div.  103. 

The  writ  of  certiorari  is  a  special  proceeding  and  an  order  from 
which  an  appeal  is  taken  therein  affects  a  substantial  right.  It 
is,  therefore,  appealable  under  §  1356.  People  ex  rel.  Thomas  v. 
Sackett,  15  App.  Div.  290. 

But  an  order  in  a  special  proceeding  instituted  before  a  justice 
of  the  peace  is  not  appealable  from  the  county  court  to  the 
appellate  division.  Where  an  appeal  is  not  authorized  by 
statute  the  consent  of  the  parties  cannot  confer  authority  upon 
the  appellate  division  to  hear  the  appeal.  Matter  of  Rafferty, 
14  App.  Div.  55. 

Since  the  word  "final"  was  stricken  from  §  1356  of  the 
Code  by  the  amendment  of  1877,  the  right  to  appeal  in  special 
proceedings  is  not  limited  to  final  orders.  Hart  v.  fohnso?i,  ^t, 
Hun,  505. 

An  appeal  lies  from  an  order  confirming  the  report  of  com- 
missioners in  proceedings  relative  to  the  opening  of  streets  in  the 
city  of  New  York  under  special  laws.  Matter  of  Kingsbridge 
Road,  4  Hun,  245,  affirmed  in  62  N.  Y.  645  ;  Matter  of  Commis- 
sioners of  Central  Park,  4  Lans.  647  ;  King  v.  Mayor,  36  N.  Y. 
182;  Pryors  Appeal,  5  Abb.  572. 

An  order  made  by  a  special  county  judge  upon  return  of  a 
writ  of  habeas  corpus  discharging  the  relator  from  imprisonment 
under  execution  issued  upon  a  justice's  judgment  can  only  be 
reviewed  by  appeal  and  not  by  certiorari.  Section  135  i  includes 
all  such  orders.    People  ex  rel.  Tucker,  16  Civ.  Pro.  126,  7  Siipp.  192. 


SPECIAL    PROCEEDINGS    GENERALLY    CONSIDERED.  33 

Art.  5.     Appeals. 

An  order  appointing  commissioners  in  condemnation  proceed- 
ings is  appealable.  In  re  City  of  Utica,  73  Hun,  256,  26  Supp. 
564.  /;/  )-e  Broadway  &  Jtli  Ave.  R.  R.  Co.,  69  Hun,  275,  23 
Supp.  609,  an  order  appointing  commissioners  to  determine 
points  of  crossing  by  the  intersecting  of  railroad  tracks  of  one 
railroad  over  another  under  the  Railroad  Act  is  appealable  as 
from  an  order  affecting  a  substantial  right  made  in  a  special  pro- 
ceeding. Such  right  of  appeal  is  not  prohibited  by  the  General 
Railroad  Act.  /;/  re  Saratoga  EL  Co.,  58  Hun,  288,  12  Supp.  318. 
An  appeal  lies  from  an  order  which  is  absolute  in  adjudging  a 
person  in  contempt  and  prescribing  punishment.  Boon  v.  Mc- 
Gucken,  Gy  Hun,  251,  22  Supp.  424,  23  Civ.  Proc.  115. 

An  order  made  at  Special  Term  denying  an  order  to  show 
cause  why  a  party  should  not  be  punished  for  contempt  of 
mandamus  is  final  and  appealable.  People  v.  Rice,  144  N.  Y. 
249,  74  Hun,  179.  An  appeal  lies  from  an  order  of  the  county 
court  determining  the  validity  of  the  Election  Law.  In  re  Vil- 
lage of  Harrisville  v.  Lazvrence,  66  Hun,  302,  21  Supp.  62.  An 
appeal  lies  from  an  order  directing  the  county  clerk  to  print 
certain  names  on  the  ofificial  ballot  when  made  by  a  justice  of 
the  Supreme  Court  under  §  65  of  the  Election  Law,  which 
provides  that  ofificers  with  whom  certificates  of  nomination  are 
filed  shall  pass  on  objections  thereto  and  his  decision  shall  be 
final,  unless  an  order  shall  have  been  made  in  the  matter  by  the 
court  or  a  justice  of  the  Supreme  Court.  In  re  Mitchell,  81  Hun, 
401,  63  St.  Rep.  121,  30  Supp.  962. 

The  statute  authorizing  the  State  Commission  in  Lunacy  to 
make  certain  orders,  and  providing  that  "  if  such  an  order  is 
issued  it  must  be  approved  by  a  justice  of  the  Supreme  Court," 
does  not  make  the  order  of  the  commission  the  order  of  the 
court,  and  therefore  a  refusal  of  the  judge  to  revoke  his  ap- 
proval is  not  appealable.  Matter  of  Board  of  Charities, 'j6Y{\xr\, 
74,  27  Supp.  856.  An  order  appointing  a  receiver  in  proceed- 
ings supplementary  to  execution  is  not  appealable.  MoscJiellv. 
Boor,  66  Hun,  557,  21  Supp.  683.  On  a  motion  by  a  candidate, 
for  mandamus  to  the  Board  of  Canvassers  to  adopt  a  certain 
statement  of  canvass  of  votes,  the  opposing  candidate  moved  for 
permission  to  appear  and  be  heard,  which  was  granted,  but  sub- 
sequently a  further  order  stating  that  he  appeared  and  was  made 
a  party  was  refused  ;  held,  that  he  could  not  appeal  from  the 
3 


34  SPECIAL   PROCEEDINGS    GENERALLY   CONSIDERED. 

Art.   5.     Appeals. 

order,  granting  the  writ.  People  v.  Bd.  of  Canvassers,  '^o  Hun, 
601,  2  Supp.  561. 

Undertaking  for  staying  execution  upon  appeal  in  special 
proceedings  must  be  in  the  form  prescribed  by  §  1327,  for 
staying  an  appeal  from  an  order  directing  the  payment  of  a  sum 
of  money,  as  the  provisions  of  this  section  are  rendered  appli- 
cable to  a  stay  of  proceedings  on  appeal  in  special  proceedings 
by  §§  1 351-1360.  /;/  re  Ciancimitio,  26  Abb.  N.  C.  48,  13  Supp, 
856.  Judgment  affirmed,  59  Hun,  622,  14  Supp.  938.  An  order 
appointing  commissioners  to  assess  damages  in  proceedings  for 
extending  a  street  is  a  special  proceeding  within  §  3240,  pro- 
viding that  costs  on  appeal  in  special  proceedings  taken  to  a 
court  of  record  may  be  awarded  to  a  party  in  the  discretion 
of  the  court  at  rates  allowed  for  similar  services  in  actions. 
Matter  of  South  Market  Street,  80  Hun,  246,  29  Supp.  1030. 
Proceedings  to  vacate  an  assessment  are  special  proceedings 
which  abate  on  the  death  of  the  petitioner,  and  cannot  be  re- 
vived in  the  name  of  their  administrators  or  executors.  /;/  re 
Barney,  53  Hun,  480,  6  Supp.  401  ;  In  re  Marshall,  55  Hun, 
606,  7  Supp.  861  ;  In  re  Roberts,  53  Hun,  338,  6  Supp.  195.  (See 
amendment  to  §  755  made  in  1891.) 

A  like  rule  was  held  in  Matter  of  Palmer,  115  N.  Y.  493,  pre- 
vious to  the  amendment  of  1891.  The  right  to  revive  and  con- 
tinue undetermined  special  proceedings  in  the  name  of  or  against 
the  administrator  of  a  deceased  party  depends  entirely  upon 
statutory  authority. 

Application  of  §§  755-757  of  the  Code  is  limited  to  subdi- 
visions 6  and  4  of  §  3347,  and  they  do  not  relate  to  proceedings 
in  surrogates'  courts,  notwithstanding  the  amendment  of  that 
section  in  1891.     Matter  of  Camp,  81  Hun,  387. 

Section  1356  regulates  appeals  in  special  proceedings  {Dicker- 
man  V.  Dickerman,  34  Hun,  585),  including  appeals  from  refer- 
ences of  disputed  claims  by  order  of  the  surrogate.  De  Nise  v. 
De  Nise,  41  Hun,  9.  Also  proceedings  to  punish  as  for  a  con- 
tempt which  are  appealable  to  the  Court  of  Appeals.  People  ex 
rel.  Negns  v.  Dtvyer,  90  N.  Y.  402.  An  appeal  from  an  order 
confirming  the  report  of  arbitrators  and  from  the  judgment  en- 
tered thereon  must  be  heard  upon  the  same  papers  as  were 
before  the  court  at  the  time  when  the  order  was  made  and  the 
judgment    directed  from  which  the  appeal  was  taken.     A  case 


SPECIAL   PROCEEDINGS   GENERALLY   CONSIDERED.  35 


Art.  5.     Appeals. 


forms  no  part  of  the  papers,  and  none  can  regularly  be  proposed 
or  served  in  any  proceeding  taken  to  make  or  review  an  appli- 
cation concerning  an  award.  The  proceeding  prescribed  by  the 
Code  for  vacating  or  modifying  or  correcting  an  award  is  a  mo- 
tion, and  the  papers  on  which  it  is  founded  must  accompany  the 
notice  of  motion,  and  from  the  order  made  thereon  an  appeal 
may  be  taken  and  heard  on  the  same  papers  upon  which  appeals 
from  orders  are  heard  in  other  cases.  Matter  of  Poole  w.  Johnson, 
32  Hun,  216.  Such  an  order  can  only  be  reviewed  on  appeal. 
Matter  of  Livingston,  32  How.  20,  34  N.  Y.  555.  When,  in 
special  proceedings  in  courts,  or  before  officers  of  limited  juris- 
diction, they  are  required  to  ascertain  a  particular  fact  in  such 
proceedings,  having  particular  qualifications,  or  occupying  some 
peculiar  relations  to  the  parties  or  subject-matter,  such  acts, 
when  done,  are  in  the  nature  of  adjudications,  which,  if  errone- 
ous, must  be  corrected  by  a  direct  proceeding  for  that  purpose, 
and  if  not  so  corrected,  the  subsequent  proceedings  which  rest 
upon  them  are  not  affected,  however  erroneous  such  adjudica- 
tions may  be.     Porter  v.  Piirdy,  29  N.  Y.  106. 

It  seems  that  the  distinction  between  proceedings  instituted 
at  Special  Term  and  those  instituted  at  chambers  is  disregarded 
in  the  Code  of  Civil  Procedure  by  this  and  the  succeeding  sec- 
tion. Matter  of  fetter,  78  N.  Y.  601.  That  an  intermediate 
order  can  be  brought  up  for  review  ;  see  N.  V.,  W.  S.  &  B.  R. 
R.  Co.  V.  Thome,  i  How.  (N.  S.)   190. 

An  order  of  a  county  judge  directing  a  further  assessment  to 
be  made  in  proceedings  instituted  for  the  drainage  of  swamps, 
as  provided  by  chapter  608  of  Laws  of  1 881,  is  final  and  con- 
clusive, and  no  appeal  lies  therefrom  to  the  General  Term, 
either  on  questions  of  law  or  fact.  Matter  of  Swan,  33  Hun, 
200.  But  an  order  made  by  a  county  judge  upon  an  application 
for  the  refunding  of  a  tax  illegally  or  improperly  assessed,  or 
levied,  is  an  order  made  in  a  special  proceeding,  and  as  such 
reviewable  upon  appeal  to  the  General  Term  under  this  section. 
Matter  of  Harris  v.  Supervisors  of  Niagara,  33  Hun,  279. 
This  section  has  no  longer  any  application  to  bastardy  pro- 
ceedings since  the  Code  of  Criminal  Procedure,  and  they 
must  be  reviewed  by  certiorari  as  thereby  provided.  People  v. 
Carney,  2C)Y\.\xx\,  47.  If  respondents  in  a  surrogate's  court  desire 
a  review,  they   should   secure   a  return   by  the   surrogate  of  all 


36  SPECIAL   PROCEEDINGS   GENERALLY    CONSIDERED. 

Art.  5.     Appeals. 


the  facts  and  evidence  upon  which  the  claim  was  allowed. 
So  held  under  old  Code.  Hannahs  v.  Hannahs,  5  Hun,  644. 
It  was  said  in  Matter  of  Kings  Bridge  Road,  5  Hun,  146,  that 
an  appeal  from  an  order  of  the  Special  Term,  confirming  the 
report  of  commissioners  of  estimate  and  assessment,  brings  up 
for  review  only  those  questions  which  were  discussed  below. 
See,  also,  Haviland  v.  White,  7  How.  154.  But  in  Matter 
of  Petition  of  Livingston,  34  N.  Y.  555,  it  is  held,  that  on  an 
appeal  from  an  order  in  a  special  proceeding,  it  is  in  the  power 
of  the  court  to  examine  the  whole  proceeding,  and  the  language 
of  the  section  is  in  accordance  with  that  decision. 

The  stay  under  §  1360  can  only  be  by  order,  and  if  security  is 
required,  the  provisions  of  title  2,  chapter  12,  apply.  Ryan  v. 
Webb,  39  Hun,  436.  It  was  held  before  the  present  Code  that 
the  intention  of  the  legislature  was  to  assimilate  appeals  in 
special  proceedings  to  those  from  judgments.  Rochester  Water 
Works  V.  IF^^^,  60  Barb.  137;  Matter  of  Anderson,  60^.  Y.  ^^"j. 
An  order  made  by  a  justice  of  the  Supreme  Court  and  affirmed 
by  the  appellate  division  determining  as  a  result  of  a  summary 
investigation  into  the  financial  affairs  of  a  village,  instituted  by 
taxpayers  and  freeholders  under  the  General  Municipal  Law, 
section  3,  chapter  685,  Laws  1892,  is  reviewable  by  the  Court  of 
Appeals  as  a  final  order  in  a  special  proceeding.  Matter  of  Tax- 
payers of  Plattsbiirgh,  157  N.  Y.  78,  reversing  27  App.  Div.  353. 
In  Brinkley  v.  Brinklcy,  47  N.  Y.  40,  it  is  held  that  if  the  order 
is  conditional  and  the  punishment  not  inflicted,  but  it  is  in  the 
power  of  the  defendant  to  avert  it,  it  is  not  a  final  order  and  so 
is  not  appealable.  Where  on  a  motion  to  punish  for  contempt 
in  violating  an  injunction  order  there  is  evidence  sufficient  to 
call  for  the  exercise  of  the  discretion  of  the  court,  the  decision  is 
not  reviewable  by  the  Court  of  Appeals.  Mayor  v.  N.  Y.  &  S.  I. 
Ferry  Co.,  64  N.  Y.  622.  An  order  of  the  appellate  division  re- 
versing an  order  of  the  Special  Term  vacating  a  final  order  or 
judgment  in  condemnation  proceedings  is  not  a  final  order  in 
special  proceedings  within  the  meaning  of  the  Constitution  and 
§  190  of  the  Code,  and  so  not  appealable  as  of  right  to  the  Court 
of  Appeals.  City  of  fohnstozcn  v.  Wade,  157  N.  Y.  50,  dismissing 
30  App.  Div.  5. 

An  order  of  the  appellate  division  affirming  an  order  of  the 
Special  Term  appointing  commissioners  to  ascertain  the  damages 


SPECIAL    PROCEEDINGS    GENERALLY    CONSIDERED.  3/ 


Art.   5.     Appeals. 


to  property  owners  by  the  reason  of  change  of  grade  of  a  village 
street,  although  made  in  a  special  proceeding,  is  not  a  final  order 
and  therefore  not  appealable  as  a  matter  of  right  to  the  Court  of 
Appeals.  Matter  of  Grab,  157  N.  Y.  69,  dismissing  appeal  in  31 
App.  Div.  610.  An  order  of  the  appellate  division  reversing  an 
order  of  Special  Term  made  on  motion  to  determine  whether  a 
fund  in  question  was  covered  by  the  lien  of  a  mortgage  being  fore- 
closed, is  not  a  final  order  in  a  special  proceeding,  but  an  order  in 
a  foreclosure  action,  and  not  appealable  to  the  Court  of  Appeals 
as  a  matter  of  right.  Neiv  York  Security  &  Trust  Company  v. 
Saratoga,  G.  &  E.  L.  Co.,  156  N.  Y.  645,  dismissing  appeal  in  30 
App.  Div.  89. 

The  provisions  of  §  190  of  the  Code  of  Civil  Procedure 
allowing  appeals  to  the  Court  of  Appeals  from  an  order  finally 
determining  actions  and  special  proceedings  refer  only  to  final 
judgments  in  actions  and  final  orders  in  special  proceedings,  and 
an  appeal  cannot  be  taken  to  the  Court  of  Appeals  from  an  order 
in  an  action  although  it  is  one  which  ends  the  litigation.  Van 
Arsdale  v.  King,  155  N.  Y.  325.  A  like  rule  was  held  in  Merri- 
man  v.  Parker  L.  Co.,   155  N.  Y.  136. 

An  order  of  the  appellate  division  finally  determining  a  pro- 
ceeding by  mandamus,  under  §  114  of  the  Election  Law 
(L.  1896,  ch.  909),  for  a  recount  of  ballots,  objected  to  as  marked 
for  identification,  or  rejected  as  void,  and  presenting  a  question 
of  law  for  review,  is  appealable,  as  of  right,  to  the  Court  of 
Appeals,  as  an  order  finally  determining  a  special  proceeding. 
Pco.  ex  rel.  Fecney  v.  Bd.  of  Canvassers,  1 56  N.  Y.  36.  The 
Court  of  Appeals  passed  upon  the  appealability  of  an  order 
claimed  to  be  in  a  special  proceeding.  Matter  of  Attorney-Gen- 
eral, 145  N.  Y.  441. 

For  other  authorities  as  to  what  special  proceedings  are  appeal- 
able, see  authorities  collated  under  Art.  I.  of  this  chapter  as  to 
what  are  special  proceedings  ;  and  also  under  Art.  III.  enume- 
rating special  proceedings. 


CHAPTER  II. 

STATE  WRITS. 

PAGE. 

Article  i.  State  writs  enumerated  and  defined.     §§  1991 38 

2.  Regulations  as   to   State  writs.     §§  1993,   1994,   1992, 

1996,  1995'  1998 43 

3.  Service   of    State  writs   and    obedience    thereto.      §§ 

1999,  2000,  2001,  2002,  2003,  2004,  2005,  2006 46 

4.  Final  order  and  its  enforcement.     §§  1997,2007 49 

Sections  of  the  Code  and  Where    Found  in  this  Chapter. 

SEC.                                                                                                                                                                                                                            ART.  PAGE. 

1991 .  State  writs  enumerated i  38 

1992.  To  be  under  seal  of  court 2  43 

1993.  State  writ  at  the  instance  of  the  people 2  43 

1994.  Relator,  when  joined  with  people  ;  parties,  how  styled 2  43 

1995.  Parties  may  appear  by  attorneys 2  43 

1996.  Allowance  to  be  indorsed  and  signed ....       2  43 

1997.  Final  order  ;  certain  proceedings  same  as  in  actions 4  49 

1998.  When  writ  returnable 2  44 

1999.  How  served » 3  4^ 

200Q.  Habeas  corpus,  how  served ;  fees  and  undertaking,  when  required. . .       3  46 

2001 .  Fees  to  persons  not  officers 3  4^ 

2002.  Last  two  sections  qualified 3  4(> 

2003.  Mode  of  serving  writ,  when  person  conceals  himself,  etc 3  47 

2004.  Person  served  to  obey  habeas  corpus 3  47 

2005.  Id. ;  as  to  certiorari 3  47 

2006.  Time  of  returning  habeas  corpus 3  47 

2007.  Punishment  for  non-payment  of  costs 4  49 


ARTICLE  I. 

St.'\te  Writs  Enumerated  and  Defined.    §  1991. 

§  1991.  State  writs  enumerated. 

The  writ  of  habeas  corpus  to  bring  up  a  person  to  testify,  or  to  answer;  the  writ  of 
habeas  corpus,  and  the  writ  of  certiorari,  to  inquire  into  the  cause  of  detention;  the 
writ  of  mandamus;  the  writ  of  prohibition;  the  writ  of  assessment  of  damages, 
which  is  sul)stituled  for  the  writ  heretofore  known  as  the  writ  of  ad  i/uod  damnum  ; 
and  the  writ  of  certiorari  to  review  the  determination  of  an  inferior  tribunal,  which 
may  be  called  the  writ  of  review,  shall  hereafter  be  styled,  collectively,  State  writs. 

The  title  of  the  writs  cnuiiicratcd  in  this  chapter  is  new  under 
the  Code  of  Civil  Procedure,  but  the  writs  arc  all  of  conimon-law 
origin.     All    these  writs   formerly   ran    in   the   king's  name   and 

38 


STATE    WRITS.  39 


Art.   I.     State  Writs  Enumerated  and  Defined. 


now  run  in  the  name  of  the  people  under  the  title  "  State  Writs," 
which  was  first  applied  in  the  proposed  revision  of  the  Code  sub- 
mitted by  the  Code  Commission,  of  which  David  Dudley  Field 
was  the  head,  in    1853. 

The  section  relative  to  this  matter  provided,  "  The  writs  here- 
tofore known  as  prerogative  writs  so  far  as  they  are  hereafter  to 
be  recognized,  shall  be  denominated  State  Writs."  That  report 
provided  for  a  change  in  the  names  of  the  various  writs,  by  which 
writ  of  certiorari  was  to  be  known  as  the  "  Writ  of  Review  of 
Inferior  Jurisdiction";  the  writ  of  mandamus  it  was  provided 
should  be  thereafter  denominated  the  "  Writ  of  Mandate  "  ;  the 
writ  of  ad  quod  dammini  was  to  be  known  as  the  "  Writ  of 
Assessment  of  Damages,"  and  the  writ  of  habeas  corpus  as  the 
"Writ  of  Deliverance  from  Imprisonment."  Every  other  writ 
of  habeas  corpus  was  abolished.  The  old  names,  however,  were 
retained  in  the  revision  of  1880  except  the  writ  "  ad  quod  daimmm," 
which  became  the  "  Writ  of  Assessment  of  Damages." 

It  must  be  observed  that  the  scope  of  all  these  writs,  with  the 
possible  exception  of  the  writ  of  habeas  corpus,  has  been  very 
greatly  modified  from  time  to  time  by  the  custom  and  usage 
of  the  courts  and  by  statutory  enactment.  The  Code  now 
defines  their  nature  and  limits  the  circumstances  under  which 
they  may  issue. 

The  object  of  retaining  the  writs  as  such  in  any  of  these  pro- 
ceedings is  not  at  all  clear,  since  every  object  sought  to  be  accom- 
pHshed  by  the  writ  can  be  and  is  brought  about  in  all  other  pro- 
ceedings by  the  granting  and  service  of  an  order  made  by  the 
court.  As  these  writs  can  only  issue  by  special  order  of  the 
court,  they  simply  create  an  unnecessary  complication  by  reason 
of  the  requirement  for  their  formal  preparation  and  service,  as 
they  can  only  be  based  upon  an  order  which  would  be  in  these 
cases,  as  in  all  others,  quite  sufficient  of  itself  without  the  addi- 
tional labor  imposed  by  requiring  the  seal  of  the  court,  which 
certainly  adds  nothing  to  their  authority  or  validity. 

As  they  stand,  however,  as  part  of  the  practice  they  must  be 
recognized  and  considered  in  any  proceeding,  of  which  they  con- 
stitute one  of  the  requisites,  as  being  absolutely  necessary  to  its 
enforcement. 

The  writ  of  habeas  corpus,  to  bring  up  a  person  to  testify  or 
answer,  serves  a  convenient  purpose  in  practice,  which  is   fully 


40  STATE    WRITS. 


Art.    I.     State  Writs  Enumerated  and  Defined. 


described  in  its  title  ;  its  origin  and  history  have  no  especial  in- 
terest, and  its  use  is  much  restricted. 

The  writ  of  habeas  corpus  and  the  ancillary  writ  of  certiorari, 
which  must  not  be  confounded  with  the  ordinary  writ  of  review 
bearing  that  title,  take  a  leading  place  in  the  history  of  the  com- 
mon law.  The  habeas  corpus  is  one  of  the  oldest  of  the  com- 
mon-law writs,  traces  of  it  being  found  as  early  as  1374.  The 
writ  of  habeas  corpus  is  an  ancient  and  legal  writ.  Cro.  Car.  466. 
In  Bacon's  Abridgment,  vol.  3,  p.  42,  and  Comyn's  Digest,  vol.4, 
p.  336,  the  writ  of  habeas  corpus  is  said  to  be  awarded  to  have  the 
body  and  cause  of  one  imprisoned  removed  to  some  superior 
jurisdiction  which  hath  the  authority  to  examine  the  legality  of 
the  commitment.  It  went  under  various  names,  as  the  habeas 
corpus  ad  subjiciendum,  which  issued  in  criminal  cases  ;  the 
habeas  corpus  ad  faciendum  and  recipiendum,  which  issued  only 
in  civil  cases  ;  the  habeas  corpus  ad  respondendum,  where  the  per- 
son w^as  confined  in  jail  for  a  cause  of  action  accruing  in  an  in- 
ferior court,  and  a  third  person  had  a  cause  of  action  against 
him ;  and  the  habeas  corpus  ad  deliberandum  and  recipiendum, 
which  lay  to  remove  the  person  to  the  proper  place,  or  the 
county  where  he  had  committed  some  criminal  offence. 

The  writ  as  it  now  exists  dates  back  to  the  time  of  Charles  II. 
One  of  the  notable  instances  of  its  use  was  the  case  of  John 
Wilkes,  in  1763,  he  having  been  arrested  for  publishing  a  treason- 
able and  seditious  newspaper.  The  writ  was  sued  out  on  the 
ground  that  no  name  was  inserted  in  the  warrant  issued  for  his 
arrest. 

The  writ  was  issued  in  this  State  as  early  as  1787,  on  the  ground 
that  the  commitment  did  not  specify  the  offence  charged. 

The  statute  of  Charles  II.  was  followed  in  the  first  statute  en- 
acted in  this  State  in  1787;  this  was  amended  in  1818,  and  again 
in  1828.  The  subsequent  revisions  have  been  slight,  the  Code 
of  Civil  Procedure  having  adopted  substantially  the  previous 
statutes. 

The  Constitution  of  the  United  States  provides  (art.  i,  §  9, 
clause  2):  "  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  invasion  the 
public  safety  requires  it,"  thus  recognizing  the  existence  of  the 
remedy  ;  and  in  1789,  Congress  passed  an  act  defining  the  juris- 
diction of  the  Federal  courts  in  issuing  the  writ. 


STATE    WRITS.  4I 


Art.   I.     State  Writs  Enumerated  and  Defined. 


The  writ  of  certiorari,  to  inquire  into  the  cause  of  the  deten- 
tion, is  in  aid  of  the  writ  of  habeas  corpus,  and  provided  for  by 
the  same  article  of  the  Code  of  Civil  Procedure. 

The  writ  of  mandamus  seems  originally  to  have  been  a  mandate 
from  the  sovereign  directing  the  performance  of  a  specific  act  by 
a  subject.  By  Comyn's  Digest,  vol.  5,  p.  21,  mandamus  is  defined 
as  a  prerogative  writ  introduced  to  prevent  disorder  from  a  fail- 
ure of  justice  and  defect  of  police,  and  ought  to  be  used  on  all 
occasions  where  the  law  has  established  no  specific  remedy,  and 
where  in  justice  and  good  government  there  ought  to  be  one; 
while  Bacon's  Abridgment,  vol.  4,  p.  497,  defines  mandamus  as  a 
writ  commanding  execution  of  an  act  where  otherwise  justice 
would  be  obstructed  or  the  king's  charter  neglected,  issuing  reg- 
ularly in  cases  relating  only  to  the  public  and  the  government, 
and  is,  therefore,  termed  a  prerogative  writ.  It  is  defined  by 
Blackstone  as  "  In  general  a  command  issuing  in  the  king's 
name  from  the  Court  of  the  King's  Bench  and  directed  to  any 
person,  corporation,  or  inferior  court  of  jurisdiction  within  the 
king's  dominions,  requiring  them  to  do  some  particular  thing 
therein  specified,  which  appertains  to  their  ofifice  or  duty,  and 
which  the  Court  of  King's  Bench  has  previously  determined,  or 
at   least   supposes  to  be  consonant  to  right  or  justice." 

Lord  Mansfield  said:  "  A  mandamus  is  a  prerogative  writ  to 
the  aid  of  which  the  subject  is  entitled  upon  a  proper  case 
previously  shown  to  the  satisfaction  of  the  court.  There  is  no^ 
doubt  that  where  a  party  who  has  a  right  has  no  other  specific 
legal  remedy,  the  court  will  assist  him  by  issuing  this  writ."^ 
Rex  V.  Asken,  Burr.  486. 

The  Code  of  Civil  Procedure  has  defined  fully  the  practice  on 
this  writ,  which  theretofore  was  regulated  partially  by  the  com- 
mon-law rules,  partially  by  the  Revised  Statutes,  and  in  part  by  the 
Code  of  Procedure.  The  writ  of  mandamus  is  a  legal  writ,  and 
the  forms  of  procedure  and  the  rules  which  governed  in  the  Court 
of  Chancery  have  no  application  to  it.  People,  ex  rel.  v.  French^ 
3  Civ.  Pro.   180. 

Bacon's  Abridgment,  vol.  5,  p.  446,  says  of  the  writ  of  prohibi- 
tion, that  its  object  is  the  preservation  of  the  right  of  the  king's 
crown  and  courts,  and  the  ease  and  quiet  of  the  subject  ;  its  ob- 
ject is  to  keep  the  several  courts  within  the  limits  and  bounds 
of  their  jurisdictions  prescribed  by  the  laws  and  statutes  of  the 


42  STATE   WRITS. 


Art.   I.     State  Writs  Enumerated  and  Defined. 


realm.  The  writ  of  prohibition,  while  but  rarely  used,  was  de- 
clared by  Judge  Selden  in  Quinibo  Appo  v.  The  People,  20  N.  Y. 
531,  "an  ancient  and  valuable  writ,  and  one,  the  use  of  which  in 
all  proper  cases  should  be  upheld  and  encouraged."  It  was  em- 
ployed in  England  from  the  earliest  times,  being  issued  only 
from  the  King's  Bench,  and  mainly  ran  to  the  ecclesiastical 
courts.  It  lies  to  inferior  tribunals  to  restrain  judicial  but  not 
ministerial  acts.  It  has  been  materially  modified  by  the  Code, 
and  the  practice  under  it  simplified  and  defined. 

The  writ  of  ad  quod  damnum,  or  assessment  of  damages,  was  a 
writ  used  to  inquire  whether  a  grant  intended  to  be  made  by  the 
king  would  be  to  the  damage  of  him  or  others.  Comyn,  vol.  i, 
p.  398.  There  is  in  this  State  but  a  single  reported  case  previous 
to  the  Code  of  Civil  Procedure  ;  by  the  Code  the  details  of  the 
practice  were  largely  modified. 

A  certiorari  is  an  original  writ  issuing  out  of  Chancery  or  the 
King's  Bench,  directed  in  the  king's  name  to  the  judges  or  offi- 
cers of  inferior  courts,  commanding  them  to  return  the  records 
of  a  cause  depending  before  them,  to  the  end  that  the  party  may 
have  the  more  sure  and  speedy  justice  before  him,  or  such  justices 
as  he  shall  assign  to  hear  the  cause.  Bacon's  Abridgment,  title 
Certiorari. 

The  Courts  of  Chancery  and  King's  Bench  might  award  a  cer- 
tiorari to  remove  a  proceeding  from  any  inferior  court,  whether 
of  an  ancient  or  newly-created  jurisdiction,  unless  the  statute  or 
charter  which  created  them  exempted  them  from  such  jurisdic- 
tion (Bacon's  Abridgment,  vol.  i,  p.  561);  or  as  said  by  Comyn 
(Digest,  vol.  2,  p.  185),  the  writ  of  certiorari  was  an  original  writ 
issuing  out  of  Chancery  or  King's  Bench,  when  the  king  would 
be  certified  of  any  record  in  any  other  court  "of  record. 

At  common  law  this  writ  removed  the  proceeding  to  the  court 
issuing  the  writ,  which  then  took  cognizance  of  the  matter  as  an 
original  proceeding,  and  heard  and  determined  it  as  such.  With 
us,  however,  it  is  a  writ  of  review  of  the  determination  of  an  in- 
ferior board  or  tribunal.  Its  functions  have  been  narrowed  from 
time  to  time  by  provisions  for  review  of  determinations  of  the 
different  courts  by  ap])cal,  and  by  the  Code  of  Civil  Procedure 
it  is  only  made  applical)lc  to  cases  where  no  appeal  will  lie. 

The  writ  of  certiorari  \.o  inquire  into  the  cause  of  detention, 
and  the  writ   of  certiorari  to  review  a  determination  of   an    in- 


STATE    WRITS.  43 


Art.  2.     Regulations  as  to  State  Writs. 


ferior  tribunal  are  separate  and  distinct  writs.  People  ex  rel. 
Taylor  Y.  Seaman,  8  Misc.  153.  See  this  case  for  the  distinction 
between  these  two  writs. 

Though  the  writ  of  prohibition  is  retained  among  the  State 
writs,  by  this  section,  it  was  said  by  the  commissioners,  that  the 
writ  had  survived  its  practical  utility,  and  that  all  the  benefits  of 
the  writ  may  be  obtained  by  means  of  injunction.  The  court 
says  that  the  writ  is  confined  to  a  narrow  field  of  operation. 
People  ex  rel.  Baldivin  v.    Goldfogle,  23    Civ.   Pro.  419,    62  St. 


Rep.  70,   30  Supp.  296. 


ARTICLE  II. 

Regulations   as    to    State   Writs.    §§   1993,    1994,   1992, 

1996,  1995,  1998. 

§  1993.    State  writ  at  the  instance  of  the  people. 

Where  a  State  writ  is  required,  in  an  action  or  special  proceeding,  civil  or  criminal, 
to  wiiich  the  people  are  a  party,  or  in  which  they  are  interested,  it  may  be  awarded 
upon  the  application  of  the  attorney-general,  or  of  the  district  attorney  having  charge 
of  the  action  or  special  proceeding;  and  the  indorsement  of  the  allowance  thereof 
must  state,  that  it  was  issued  on  such  an  application. 

2  R.  S.   574,  §  77. 

§  1994.  Relator,  when  joined  with  people;  parties,  how  stylede 

A  State  writ  must  be  issued  in  behalf  of  the  people  of  the  State  ;  but  where  it  is 
awarded  upon  the  application  of  a  private  person,  it  must  show  that  it  was  issued 
upon  the  relation  of  that  person.  The  officer  or  other  person,  against  whom  the 
writ  is  issued,  shall  be  styled  the  defendant  therein. 

g  1992.  To  be  under  seal  of  court. 

A  State  writ  must  be  issued  under  the  seal  of  the  court  by  which  it  is  awarded. 
Where  it  is  allowed  by  a  judge  out  of  court,  and  is  returnable  before  a  court  of  rec- 
ord, it  must  be  issued  under  the  seal  of  the  court  before  which  it  is  returnable. 
Where  it  is  returnable  before  a  judge  out  of  court,  or  before  a  body  or  tribunal,  othei 
than  a  court  of  record,  it  must  be  issued  under  the  seal  of  the  Supreme  Court.  Where 
the  seal  of  the  Supreme  Court  is  to  be  used,  as  prescribed  in  this  section,  it  may  be 
the  seal  of  the  county  wherein  the  writ  is  awarded,  or  wherein  it  is  returnable. 

§  1996.  Allowance  to  be  indorsed  and  signed. 

The  presiding  judge  of  a  court,  by  which  a  State  writ  is  awarded,  or  the  judge 
■who  allows  such  a  writ  out  of  court,  as  the  case  may  be,  must  sign  an  allowance 
thereof  indorsed  thereupon,  stating  the  date  of  the  allowance. 

g  1995.  Parties  may  appear  by  attorneys. 

The   parties    to  a  special   proceeding,    instituted  by   State  writ,   may  appear  by 


44 


STATE   WRITS. 


Art.   2.     Regulations  as  to  State  Writs. 


attorney,  with  like  effect  as  in  an  action  brought  in  the  Supreme  Court  ;  but  a  return 
to  such  a  writ  must  be  made  under  the  hand  of  the  defendant,  except  in  a  case 
where  it  is  otherwise  specially  prescribed  bylaw,  or  where  the  court  or  judge,  for 
good  cause  shown  by  affidavit,  otherwise  directs.  Where  the  attorney-general  or  the 
district  attorney  does  not  appear  for  the  people,  the  attorney  for  the  relator  is  deemed 
also  the  attorney  for  the  people. 

§  1998.  When  writ  returnable. 

Except  where  special  provision  is  otherwise  made  in  this  act,  a  State  writ  may  be 
made  returnable  forthwith,  or  on  a  future  day  certain,  as  the  case  requires. 

Where  the  people  have  an  interest  the  attorney-general  is  the 
proper  ofHeer  to  set  it  in  effective  operation  on  their  behalf.  So 
held  on  mandamus  to  compel  railroad  company  to  perform  their 
duties  as  common  carriers.  People  v.  N.  V.  C.  &  H.  R.  R.  R.  Co., 
28  Hun,  543. 

The  writ  of  mandamus  on  behalf  of  the  people  in  their  sover- 
eign capacity  can  be  awarded  only  upon  the  application  of  the 
attorney-general  or  some  district  attorney,  and  the  indorsement 
upon  the  writ  must  show  that  it  was  issued  upon  such  appli- 
cation, and  in  such  case  the  name  of  no  person  need  appear  as 
relator  in  the  proceeding.  In  other  cases  the  proceeding  is 
purely  one  to  enforce  a  civil  remedy  and  the  people  are  present 
merely  as  a  formal  party,  and  their  presence  is  due  to  the  survival 
of  a  form  which  has  long  since  ceased  to  have  any  significance  or 
utility.  The  real  party  in  interest  is  the  relator  in  such  a  case, 
and  if  he  should  die  the  proceeding  would  abate.  People  ex  rel. 
Sherwood  v.  Board  of  Canvassers,  129  N.  Y.  360,  m,  41  St. 
Rep.  918. 

Section  1992  is  a  substantial  re-enactment  of  2  R.  S.  574,  § 
74,  except  that  certain  writs  are  there  enumerated  by  name. 
The  writs  and  return  thereto  were  required  to  be  sealed  under 
the  earlier  practice.  See  as  to  mandamus,  4  Bacon's  Abridg- 
ment, 498  ;  as  to  return  to  certiorari  under  seal  of  tribunal  to 
which  it  is  directed,  i   id.  571. 

A  writ  of  certiorari  to  review  the  determination  of  an 
inferior  tribunal  is  a  State  writ,  which  by  the  express  pro- 
vision of  the  statute  is  required  to  be  issued  under  the  seal  of 
the  court  before  which  it  is  returnable.  A  writ  is  not,  how- 
ever, void  by  reason  of  this  defect,  which  may  be  cured  by 
amendment.  People  ex  rel.  v.  Assessors  of  Toivn  of  Herkimer, 
6  Civ.  Pro.  297. 


STATE    WRITS.  45 


Art.   2.     Reorulations  as  to  State  Writs. 


The  provision  of  §  1992  is  tantamount  to  the  statute  making 
the  seal  of  the  county  the  seal  of  the  Supreme  Court.  In  prac- 
tice the  writ  will  ordinarily  issue  from  the  Supreme  Court, 
except  in  case  of  habeas  corpus,  where  the  writ  is  frequently 
allowed  by  county  judges  or  other  judicial  officers  having  juris- 
diction, but  in  those  cases  it  is  ordinarily  returnable  before  the 
judge  out  of  court. 

The  writ  of  mandamus  is  a  State  writ  and  should  be  issued  in 
the  name  of  the  people  of  the  State,  but  where  it  is  awarded  on 
the  application  of  a  private  person  it  must  show  that  it  was 
awarded  on  the  relation  of  that  person.  People  ex  rel.  Mason  v. 
Board  of  Supervisors,  45  Hun,  62. 

When  the  writ  is  issued  on  behalf  of  the  people,  and 
on  their  application,  the  papers  after  the  petition  will  be  en- 
titled "  The  People  of  the  State  of  New  York,  against  the 
person  named  as  Defendant."  On  mandamus  so  entitled 
brought  by  the  attorney-general,  the  affidavit  was  entitled  in 
the  proceeding.  In  case  where  a  private  person  is  relator,  the 
title  is  "  The  People  ex  rel.  Richard  Stokes,  against  George 
Young,  Sheriff  ;  "  the  party  suing  out  the  writ  is  termed  the 
relator. 

It  is  said  in  People  v.  j\Iason,  9  Wend.  505,  referring  to  3  R.  S. 
yy,  which  is  similar  in  language,  that  the  writ  of  habeas  corpiis  is 
the  proper  remedy  given  the  public  prosecutor  where  property  is 
burglariously  stolen  in  one  county  and  the  offender  is  appre- 
hended and  committed  for  such  offence  to  the  jail  of  another 
county  if  he  is  indicted  in  the  county  where  the  property  was 
stolen,  and  that  the  circumstances  under  which  it  is  necessary  or 
proper  to  issue  the  writ  are  not  specified  by  the  statute  but  are 
necessarily  left  in  the  discretion  of  the  court.  On  production  of 
a  writ  duly  indorsed  it  is  the  duty  of  the  sheriff  to  deliver  the 
prisoner.  The  provisions  as  to  the  time  of  return  to  the  writ  of 
mandamus  will  be  found  at  §  2072  ;  those  as  to  return  to  writ  of 
certiorari  at  §  2132;  those  as  to  writ  of  prohibition  at  §  2095. 
The  rule  in  King's  Bench  as  to  certiorari  was  that  it  was  re- 
turnable the  first  day  of  the  ne.xt  term.  Comyn's  Digest,  vol. 
2,  p.  192.  The  writ  at  common  law  must  have  been  signed  before 
sealing.  2  Salkeld,  434.  By  statute  of  Charles  II.  the  writ  of 
habeas  corpus  must  be  indorsed,  and  if  not  signed  by  the  judge, 
need  not  be  obeyed.     Cowper,  672. 


46  STATE    WRITS. 


Art.  3.     Servnce  of  State  Writs  and  Obedience  Thereto. 

The  form  of  indorsement  may  be,  under  §§  1993,  1995  : 
"  The  within  writ  allowed  this  31st  day  of  March,  1886. 

(Signed)  *'  William  S.  Kenyon, 

Or  "  County  Judged 

"The   within   writ  allowed  this   31st  day  of  March,    1886,  on 

application    of    J.    N.    Vanderlyn,    district    attorney    of    Ulster 

county.  (Signed)  "  William  S.  Kenyon, 

"  Con  iity  Jitdgc. 
This  indorsement,  which  is  usually  accompanied  by  a  formal 

order  that  the  writ  issue,  is  the  authority   for  signature  of  the 

clerk  and  affixing  the  seal. 

ARTICLE    III. 

Service  of  State  Writs  and  Obedience  Thereto. 
§§  1999-2006. 

§  1999.    How  served. 

Except  where  special  provision  is  otherwise  made  in  this  act,  a  State  writ  must  be 
personally  served,  in  like  manner  as  a  summons,  issued  out  of  the  Supreme  Court; 
and  each  provision  of  this  act,  relating  to  the  personal  service  of  such  a  summons 
upon  a  defendant,  applies  to  the  service  of  a  State  writ. 

§  2000.  Habeas  corpus,  how  served;  fees  and  undertaking, 
when  required. 

A  writ  of  habeas  corpus  can  be  served  only  by  an  elector  of  the  State.  Where  the 
prisoner  is  in  custody  of  a  sheriff,  coroner,  constable,  or  marshal,  the  sendee  is  not 
complete,  unless  the  person  serving  the  writ  tenders  to  the  officer,  the  fees  allowed 
by  law  for  bringing  up  the  prisoner,  and  delivers  to  him  an  undertaking,  with  at  least 
one  surety,  in  a  sum  specified  therein,  to  the  effect  that  the  surety  will  pay  the 
charges  for  carrying  back  the  prisoner,  if  he  shall  be  remanded;  and  that  the  prisoner 
will  not  escape  by  the  way,  either  in  going  to,  remaining  at,  or  returning  from  the 
place  to  which  he  is  to  be  taken.  The  sum  so  specified  must  be,  at  least,  twice  the 
sum  for  which  the  prisoner  is  detained,  if  he  is  detained  for  a  specific  sum  of 
money;  if  not,  it  must  be  one  thousand  dollars. 

2  R.  S.  574,  §  78,  am'd. 

§  2001.  Fees  to  persons  not  oflacers. 

A  court  or  a  judge,  allowing  a  writ  of  habeas  corpus,  directed  to  any  person  other 
than  a  sheriff,  coroner,  constable,  or  marshal,  may,  in  its  or  his  discretion,  require  the 
applicant,  in  order  to  render  the  service  thereof  complete,  to  pay  the  charges  of 
bringing  up  the  prisoner.  In  that  case,  the  amount  of  the  charges,  not  to  exceed  the 
fees  allowed  by  law  to  a  sheriff  for  a  similar  service,  must  be  specified  in  the  certifi- 
cate allowing  the  writ. 

§84. 

^  2002.  Last  two  sections  qualified. 

The  last  two  sections  are  not  appiical)le  to  a  case,  where  the  writ  is  allowed  upon 
the  application  of  the  attorney-general  or  a  district  attorney. 
§  79,  am'd. 


STATE   WRITS.  47 


Art.  3.     Service  of  State  Writs  and  Obedience  Thereto. 

§  2003.  Mode  of  serving  writ,  when  person  conceals  himself, 
etc. 

A  writ  of  habeas  corpus  or  of  certiorari,  issued  as  prescribed  in  article  second  or 
article  third  of  this  title,  may  be  served  by  delivering  it  to  the  person  to  whom  it  is 
directed.  If  he  cannot  be  found,  with  due  diligence,  it  may  be  served  by  leaving  it 
at  the  jail  or  other  place  in  which  the  prisoner  is  confined,  with  any  under  ofificer,  or 
other  person  of  proper  age,  having  charge,  for  the  tin\e,  of  the  prisoner,  and  paying 
or  tendering  to  him  the  fees  or  charges  for  bringing  up  the  prisoner.  If  the  person 
upon  whom  the  writ  ought  to  be  served  keeps  himself  concealed,  or  refuses  admit- 
tance to  the  person  attempting  to  serve  it,  it  may  be  served  by  affixing  it  in  a  con- 
spicuous place,  on  the  outside,  either  of  his  dwelling-house,  or  of  the  place  where  the 
prisoner  is  confined.  In  that  case,  the  service  is  complete,  without  tendering  the  fees 
or  charges  for  bringing  up  the  prisoner. 

§§  80  and  81,  am' d. 

§  2004.  Person  served  to  obey  habeas  coirpus. 

A  sheriff,  coroner,  constable,  or  marshal,  upon  whom  complete  service  of  a  writ  of 
habeas  corpus  is  made,  as  prescribed  in  this  article,  must  obey  and  make  return  to  the 
writ,  according  to  the  exigencies  thereof,  whether  it  is  directed  to  him  or  not.  Any 
other  person,  upon  whom  such  a  writ  is  served,  having  the  custody  of  the  individual 
for  whose  benefit  it  was  issued,  must  obey  and  execute  it,  according  to  the  command 
thereof,  without  requiring  any  bond,  or  the  payment  of  any  charges,  except  such  as 
are  specified  in  the  certificate  allowing  the  writ. 

§82. 

§  2005.  Id. ;  as  to  certiorari. 

A  person,  upon  whom  a  writ  of  certiorari,  issued  as  prescribed  in  this  title,  is 
served,  must,  in  like  manner,  upon  payment  or  tender  of  the  fees  allowed  by  law  for 
making  a  return  to  the  writ,  and  for  copying  the  warrant,  or  other  processor  proceed- 
ing, to  be  annexed  thereto,  obey  and  return  the  writ,  according  to  the  exigency 
thereof. 

§83. 

§  2006.  Time  of  returning  habeas  corpus. 

Where  a  writ  of  habeas  corpus  is  returnable  on  a  day  certain,  the  return  must  be 
made  at  the  time  and  place  specified  therein.  Where  such  a  writ  is  returnable  forth- 
with, at  a  place  within  twenty  miles  of  the  place  of  service,  the  return  must  be  made 
and  the  prisoner  must  be  produced,  within  twenty-four  hours  after  service;  and  the 
like  time  must  be  allowed  for  each  additional  twenty  miles. 

The  service  of  writs  as  regulated  by  §  1999  must  conform  to 
§  426.  A  State  writ  maybe  served  upon  Saturday  half  holiday. 
Peo.  ex  rel.  Village  of  Fulton  v.  Supvrs.  of  Oswego,  15  Civ. 
Pro.  381. 

By  the  statute  of  Charles  II.,  if  a  habeas  corpus  was  served  on 
an  officer  having  the  custody  of  a  person,  he  was  bound,  in  three 
days  after  delivery,  if  within  twenty  miles,  or  in  ten  days  if 
above  twenty  and  under  a  hundred  miles,  or  in  twenty  days  if 
above  a  hundred  miles,  to  return  the  writ  and  bring  the  body 


48  STATE    WRITS. 


Art.  3.     Service  of  State  Writs  and  Obedience  Thereto. 

according  to  the  command  of  the  writ.     Comyn's  Digest,  vol.  4, 

P-  331- 

The  form  of  indorsement  given  under  §  1996  may  be  used  under 

§  2001,  adding,  "and  the  charges  for   bringing  up  said  prisoner, 

three    dollars,   are    directed  to   be  paid  by    the   petitioner   as  a 

condition  thereof." 

Section  2003  relates  entirely  to  the  use  of  the  writ  of  habeas 
corpus,  and  the  writ  of  certiorari  when  used  as  an  ancillary  writ 
to  inquire  into  the  cause  of  detention,  and  is  in  aid  of  personal 
liberty  as  secured  by  habeas  corpus. 

Where  relator  was  in  sheriff's  custody,  the  service  of  a  writ  of 
habeas  corpus,  directed  to  the  sheriff  and  jail  warden  where  rela- 
tor was  confined,  on  the  warden  only  unless  the  sheriff  could  not 
be  found,  is  insufficient,  since  the  sheriff,  having  the  legal  custody 
of  relator,  was  entitled  to  personal  service  under  Code,  §  1999, 
providing  that  such  writs  shall  be  personally  served  as  a  sum- 
mons out  of  the  Supreme  Court,  and  §  2004,  requiring  the 
sheriff  to  make  return  to  the  writ  when  complete  service  is  made 
upon  him.  People  ex  rel.  Mooney  v.  Walsh,  i  Supp.  143,  15  Civ. 
Pro.  19,  21  Abb.  N.  C.  302,  note. 

The  board  of  supervisors  is  a  "  person  "  within  §  2005,  re- 
quiring a  person  upon  whom  a  writ  of  certiorari  is  served  to 
make  a  return  upon  payment  or  tender  of  the  legal  fees,  and  is 
entitled  to  a  fee  for  making  such  return.  People  ex  rel.  Sutliff  v. 
Board  Supervisors  of  Fulton  Co.,  64  Hun,  375,  19  Supp,  773,  46 
St.  Rep.  471.  The  tender  or  payment  of  fees  for  copies  of 
papers  required  to  be  returned,  is  a  condition  precedent  which 
must  be  complied  with  before  a  person  or  a  public  body  or  an 
officer  can  be  compelled  by  mandamus  to  make  return  to  a  writ 
o{  certiorari.  People  ex  rel.  Dreicer  v.  Ouderkirk,  jG  Hun,  119, 
27  Supp.  821,  57  St.  Rep.  376.  A  sheriff,  having  a  prisoner  in 
custody,  to  whom  a  writ  of  certiorari  to  inquire  into  the  cause 
of  detention  is  issued,  simply  returns  the  commitment,  and  not 
the  evidence  upon  which  the  commitment  was  granted.  Peo. 
ex  rel.  Taylor  y.  Seaman,  8  Misc.  153. 

The  following  is  a  precedent  for  the  undertaking  required: 

"  Whereas  a  writ  of  habeas  corpus  has  been  issued  by  Hon.  William 
S.  Kenyon,  county  judge  of  Ulster  county,  by  which  George  Young, 
sheriff  of  Ulster  county,  is  commanded  to  have  the  body  of  Richard 
Stokes  before  him  at  his  chambers,  in  the  city  of  Kingston,  in  said 
county,  on  the   2d   day  of   April,  1886,  at  10  o'clock  in  the  forenoon,  to 


STATE    WRITS.  49 


Art.  4.     Final  Order  and  its  Enforcement. 


do  and  receive  what  shall  be  then  and  there  considered,  concerning  said 
Stokes  :  Now,  therefore,  1,  Lewis  B.  Stevens,  banker  of  the  town  of 
Wawarsin^,  in  the  county  of  Ulster,  undertake  in  the  sum  of  ^1,000  tp 
pay  to  said  George  Young  all  charges  of  carrying  such  prisoner,  if 
he'shail  be  remanded,  and  that  such  prisoner  shall  not  escape  by  the 
way  either  in  going  to,  remaining  at,  or  returning  from  the  place  to 
which  he  is  to  be  taken.  "  LEWIS  B.  STEVENS,     [l.  s.]  " 

To  which  should  be  attached  the  usual  justification  and 
acknowledgment. 

ARTICLE    IV. 
Final  Order  and  its  Enforcement.    §§  1997  and  2007. 
§  1997.  Final  order;  certain  proceedings  same  as  in  actions. 

The  final  determination  of  the  rights  of  the  parties  to  a  special  proceeding 
instituted  by  State  writ,  is  styled  a  final  order.  The  provisions  of  this  act,  relating  to 
amendments,  motions,  and  intermediate  orders,  in  an  action,  are  applicable  to  similar 
acts  in  such  a  special  proceeding;  except  where  special  provision  is  otherwise  made 
therein,  or  where  the  proceeding  is  repugnant  to  the  object  of  the  State  writ,  or  the 
mode  of  procedure  thereunder. 

§85- 

§  2007.  Punishment  for  non-payment  of  costs. 

For  non-payment,  upon  demand,  of  the  costs  awarded  by  a  final  order,  made  in  a 
special  proceeding  instituted  by  State  writ,  except  where  a  peremptory  writ  of  man- 
damus is  awarded,  after  the  issuing  of  an  alternative  mandamus,  the  person  required 
to  pay  the  same  may  be  punished  for  a  contempt  of  the  court  awarding  them,  or 
of  which  the  judge  awarding  them  is  a  member,  as  if  the  final  order  was  a  final 
judgment  of  the  court. 

The  proceedings  to  punish  a  contempt  of  the  court,  other 
than  a  criminal  contempt,  are  given  under  title  3,  chapter  17, 
Code  of  Civil  Procedure  (see  which  title).  Where  a  judgment 
of  a  court-martial  is  brought  into  Supreme  Court  by  a  writ 
of  certiorari,  and  there  reversed,  the  respondent  is  personally 
liable  for  the  costs  awarded  by  the  final  order  and  may  be 
adjudged  guilty  of  a  contempt  if  he  failed  to  pay  them  after 
a  demand  therefor  has  been  made.  In  re  Leary,  30  Hun,  394. 
Where  a  person  is  required  to  pay  costs  under  §  2007,  he 
may  be  punished  for  a  contempt  of  the  court  awarding  the 
costs.  This  is  directory  merely  and  the  court  will  inflict  such 
•  punishment  only  when  in  its  judgment  it  is  proper  to  do  so.  In 
a  statute  making  a  failure  to  pay  the  costs  of  a  proceeding  pun- 
ishable as  a  contempt,  permissive  expressions  should  not  be  con- 
strued as  mandatory  and  requiring  the  infliction  of  the  punish- 
4 


50  STATE   WRITS. 


Art.  4.     Final  Order  and  its  Enforcement. 


ment.     People  v.  Masonic  Guild  and  Mut.  Benefit  Association,  22 
Civ.  Pro.  74,   18  Supp.  806. 

Under  the  provisions  of  the  Code,  §  1997,  the  court  has 
ample  authority  to  grant  amendments  either  to  an  alternative  or 
peremptory  writ  of  mandamus  in  furtherance  of  justice.  A  man- 
damus has  sometimes  been  styled  a  mandatory  execution  to 
carry  into  effect  the  final  order  of  the  court,  and  if  an  execution 
be  issued  in  any  case  for  too  large  an  amount  or  otherwise  em- 
bracing too  much,  it  cannot  be  questioned  that  it  is  in  the  dis- 
cretion of  the  court  to  amend  or  vacate  it  entirely.  People  ex 
rel.  Hasbroiick  v.  Supervisors  of  Duchess,  135  N.  Y,  522,  534  ;  S.  C. 
48  St.  Rep.  533.  Though  the  power  of  amendment  given  by 
§  723  of  the  Code  of  Civil  Procedure  does  not  include  special 
proceedings  as  a  class,  yet  it  does  apply  to  part  of  §  1997,  and 
special  proceedings  instituted  by  State  writ.  Pco.  ex  rel.  B.  E. 
R.  Co.  v.  Bd.  of  Assessors,  10  App.  394;  People  ex  rel.  Moller  v. 
Marsh,  21  App.  Div.  88.  This  power  of  amendment  is  broad 
enough  to  include  an  amendment  as  to  parties  as  well  as  amend- 
ments to  the  petition.     Pea.  ex  rel.  Benedict  v.  Roe,  25  App.  1 10. 


CHAPTER  III. 

THE  WRIT  OF  HABEAS  CORPUS  TO  BRING  UP  A  PERSON 

TO  TESTIFY. 

§§  2008-2014.      Laws' 1847,  chap.  460,  §§  150,  155. 
Sections  of  the  Code  and  Where   Found  in  this  Chapter. 


SEC. 


ART.    PAGE. 

2008.  Habeas  corpus  to  testify;  when  allowed  by  court  or  judge i  51 

2009.  Id. ;  when  allowed  by  judge i  5^ 

2010.  Id. ;  in  suit  before  justice  of  the  peace,  etc i  51 

201 1 .  The  last  three  sections  qualified i  •  5  ^ 

2012.  Application ;   how  made i  5^ 

2013.  Certain  prisoners  to  be  remanded i  5^ 

2014.  Officer  to  obey  and  return  writ i  5^ 

§  2008.  Habeas  corpus  to  testify;  when  allowed  by  court  or 
judge. 

A  court  of  record,  other  than  a  justice's  court  of  a  city,  or  a  judge  of  such  a  court, 
or  a  justice  of  the  Supreme  Court,  has  power,  upon  the  application  of  a  party  to  an 
action  or  special  proceeding,  civil  or  criminal,  pending  therein,  to  issue  a  writ  of 
habeas  corpus,  ior  the  purpose  of  bringing  before  the  court,  a  prisoner,  detained  in  a 
jail  or  prison  within  the  State,  to  testify  as  a  witness  in  the  action  or  special  proceed- 
ing, in  behalf  of  the  applicant. 

2  R.  S.  559,  §  I,  am'd. 

§  2009.    [Am'd,  1895.]    Id. ;  when  allowed  by  judge. 

Such  a  writ  may  also  be  issued  by  a  justice  of  the  supreme  court,  upon  the  appli- 
cation of  a  party  to  the  special  proceeding,  civil  or  criminal,  pending  before  any 
officer  or  body,  authorized  to  examine  a  witness  therein.  In  a  case  specified  in  this 
section,  the  writ  may  also  be  issued  by  a  county  judge  or  a  special  county  judge,  re- 
siding within  the  county  where  the  officer  resides,  before  whom,  or  the  court  or  other 
body  sits,  in  or  before  which,  the  special  proceeding  is  pending. 

Id.  §  3,  am'd ;  L.  1895,  ch.  946. 

§  2010.  [Am'd,  1895. J  Id.;  in  suit  before  justice  of  the  peace, 
etc. 

Such  a  writ  may  also  be  issued  by  a  justice  of  the  Supreme  Court,  upon  the  appli- 
cation of  a  party  to  an  action,  pending  before  a  justice  of  the  peace,  or  in  a  justice's 
court  of  a  city,  or  a  district  court  of  the  city  of  New  York,  to  bring  before  the  justice 
or  court,  to  be  examined  as  a  witness,  a  prisoner  confined  in  the  jail  of  the  county 
where  the  action  is  to  be  tried,  or  an  adjoining  county.  In  a  case  specified  in  this 
section,  the  writ  may  also  be  issued  by  a  county  judge,  or  a  special  county  judge,  re- 
siding within  the  county  where  the  justice  resides,  or  the  court  is  located,  or  the 
prisoner  is  confined,  as  the  case  may  be. 

Id.  §  4,  am'd ;  L.  1895,  ch.  946. 

§  2011.  [Am'd,  1895.]    The  last  three  sections  qualified. 

A  writ  shall  not  be  issued,  by  virtue  of  either  of  the  last  three  sections,  to  bring  up 

51 


52  THE   WRIT   OF    HABEAS   CORPUS. 

Art.   I.     Application  ;  How  Made. 

a  prisoner  sentenced  to  death.  Nor  shall  it  be  issued  to  bring  up  a  prisoner  confined 
under  any  other  sentence  for  a  felony ;  e.xcept  where  the  application  is  made  in  be- 
half of  the  people  to  bring  him  up  as  a  witness  on  the  trial  of  an  indictment,  and  then 
only  by  and  in  the  discretion  of  a  justice  of  the  Supreme  Court  upon  such  notice  to  the 
district  attorney  of  the  county  wherein  the  prisoner  was  convicted,  and  upon  such 
terms  and  conditions,  and  under  such  regulations,  as  the  judge  prescribes. 
Substituted  for  2  R.  S.  559,  part  of  §  i ;  L.  1895,  ch.  946. 

§  2012.    Application;  how  made. 

An  application  for  a  writ,  made  as  prescribed  in  either  of  the  foregoing  sections  of 
this  article,  must  be  verified  by  affidavit,  and  must  state  : 

1.  The  title  and  nature  of  the  action  or  special  proceeding,  in  regard  to  which  the 
testimony  of  the  prisoner  is  desired  ;  and  the  court,  or  body  in  or  before  which,  or  the 
officer  before  whom,  it  is  pending. 

2.  That  the  testimony  of  the  prisoner  is  material  and  necessary  to  the  apphcant,  on 
the  trial  of  the  action,  or  the  hearing  of  the  special  proceeding,  as  he  is  advised  by 
counsel  and  verily  believes. 

3.  The  place  of  confinement  of  the  prisoner. 

4.  Whether  the  prisoner  is  or  is  not  confined  under  a  sentence  for  a  felony. 

But  where  the  attorney-general  or  district  attorney  makes  the  application,  he  need 
not  swear  to  the  advice  of  counsel. 
Id.  §  2. 

§  2013.  Certain  prisoners  to  be  remanded. 

The  return  to  a  writ,  issued  as  prescribed  in  this  article,  must  state  for  what 
cause  the  prisoner  is  held  ;  and  if  it  appears  therefrom,  that  he  is  held  by  virtue  of  a 
mandate  in  a  civil  action  or  special  proceeding,  or  by  virtue  of  a  commitment  upon  a 
criminal  charge,  he  must,  after  having  testified,  be  remanded,  and  again  committed  to 
the  prison,  from  which  he  was  taken. 

Substituted  for  Id.  g  5. 

§  2014.  Officer  to  obey  and  return  writ. 

Any  officer  to  whom  a  writ,  issued  as  prescribed  in  this  article,  is  delivered,  must 
obey  the  same,  according  to  the  exigency  thereof,  and  make  a  return  thereto  accord- 
ingly. If  he  refuses  or  neglects  so  to  do,  he  forfeits  to  the  people,  if  the  writ  was 
issued  upon  the  application  of  the  attorney-general  or  a  district  attorney,  or,  in  any 
other  case,  to  the  party  on  whose  application  the  writ  was  issued,  the  sum  of  five 
hundred  dollars.  But  where  the  prisoner  is  confined  under  a  sentence  to  death,  a 
return  to  that  effect  is  a  sufficient  obedience  to  the  writ,  without  producing  him. 

The  following  are  the  provisions  of  §§  150  and  155  of  the 
Prison  Law  : 

150.    (Chap.  460,  Laws  1847.)    Convicts  as  Witnesses. 

Whenever  any  convict  confined  in  any  county  or  .State  prison  shall  be  considered 
an  important  witness  in  behalf  of  the  people  in  this  State  upon  any  criminal  prose- 
cution against  any  other  convict,  or  against  any  person  indicted  for  a  felony,  by  the 
district  attorney  prosecuting  the  same,  it  shall  be  the  duty  of  any  justice  of  the 
Supreme  Court,  in  his  discretion,  upon  the  affidavit  of  such  district  attorney,  to 
grant  a  habeas  corpus  for  the  purpose  of  bringing  such  person  before  the  proper  court 
to  te&tify  on  such  prosecution. 


THE   WRIT   OF    HABEAS   CORPUS.  53 

Art.   I.     Writ  to  Produce  Prisoners  as  Witnesses. 

§  155  (Chap.  460,  Laws  1847.)  Writ  to  Produce  Prisoners  as 
Witnesses. 

Whenever  it  shall  appear  to  the  court  in  which  an  indictment  is  pending,  and  to  be 
tried  against  any  person  for  any  offence  committed  by  him  while  imprisoned  in  any 
county  prison,  or  any  one  of  the  State  prisons,  or  the  person  of  any  individual  con- 
fined in  such  jail  or  State  prison,  that  any  other  person  confined  in  any  county  prison 
or  in  any  of  the  State  prisons,  is  an  important  witness  in  behalf  of  the  person  so  in- 
dicted, such  court  is  hereby  authorized  to  grant  a  writ  of  habeas  corpus  for  the  pur- 
pose of  bringing  such  prisoner  before  such  court  to  testify  upon  the  trial  of  such 
indictment,  in  behalf  of  the  party  making  the  application. 

Sections  157  and  158  of  chapter  460,  Laws  1847,  provide  for 
the  granting  of  a  writ  of  habeas  corpus  for  the  purpose  of  bringing 
an  individual  indicted  for  any  offence  committed  during  im- 
prisonment. 

This  writ  is  for  the  convenience  of  litigants  in  obtaining  testi- 
mony of  persons  under  arrest,  and  its  functions  are  entirely 
different  in  their  nature  from  those  of  the  writ  of  habeas  corpus 
to  inquire  into  the  cause  of  detention  of  a  prisoner.  It  is  in  fact 
an  order,  granted  ex  parte  upon  certain  proof,  directing  the 
sheriff,  or  other  officer  in  whose  custody  the  prisoner  may  be,  to 
bring  him  into  court  to  enable  him  to  be  examined  as  a  witness. 

The  power  of  the  court  to  issue  a  writ  of  habeas  corpus  to  bring 
up  a  person  to  testify  in  a  proceeding  pending  before  it,  did  not 
come  into  existence  by  virtue  of  any  statute  of  this  State,  but  it 
was  an  original  power  inherent  in  the  courts.  It  was  exercised  in 
England,  and  the  Supreme  Court  has  by  statute  and  by  provisions 
of  the  Constitution  the  same  power  in  that  regard  that  was  exer- 
cised by  the  Court  of  King's  Bench  before  1776.  People  v.  Sea- 
bring,  14  Misc.  33,  69  St.  Rep.  614,  35  Supp.  237. 

The  prisoner  may  be  brought  up  on  writ  to  testify  upon  his 
own  application  for  a  discharge.  Wattles  v.  Marsh,  5  Cow.  176. 
See  Martin  v.  Wood,  7  Wend.  132. 

It  will  be  noticed  §  201 1  limits  the  application  of  §  2008. 

It  is  very  doubtful  whether  §  201 1  ought  to  be  construed  as 
taking  away  the  power  of  the  court  to  issue  the  writ  in  a  case 
which  is  not  provided  for  in  the  preceding  sections.  Such  a 
provision  might  very  easily  result  in  a  serious  denial  of 
justice.  People  v.  Seabring,  14  Misc.  33,  69  St.  Rep.  614,  35 
Supp.  237. 

The  form  of  writ  given  below  is  adapted  from  Wattles  v.  Marshy 
5  Cow.  176,  and  it  is  there  held  that  a  sheriff  is  protected  by  the 


54  THE    WRIT    OF    HABEAS    CORPUS. 

Art.    I.     Precedent  for  Petition  and  Writ. 

writ  if  it  was  issued  by  an  officer  of  competent  jurisdiction,  and 
is  not  void  on  its  face,  even  if  issued  erroneously.  There 
being  no  defect  of  jurisdiction  in  the  officer,  it  is  a  justifica- 
tion to  the  sheriff.  The  writ  issued  in  that  case  was  held 
good  despite  irregularities  which  were  not  of  a  substantial 
character. 

A  like  rule  was  held  in  JVi/es  v.  Brown,  3  Barb.  37,  where  a 
sheriff  was  protected  in  obeying  a  discharge  granted  on  habeas 
corpus  by  a  Supreme  Court  commissioner,  though  it  was  an 
erroneous  exercise  of  power. 

Where  a  sheriff,  having  a  prisoner  in  custody  for  contempt, 
receives  a  habeas  to  produce  him  to  testify  at  an  office  in  the 
place  where  the  jail  is  situate,  he/d,  that  he  is  not  authorized  to 
permit  the  prisoner  to  go  to  any  other  place  than  such  office,  or 
to  remain  with  him  there  longer  than  the  magistrate  himself 
stayed,  and  that  when  the  latter  left  his  'office  for  the  night,  it 
was  the  sheriff's  duty  to  take  his  prisoner  back  to  jail  and  return 
with  him  in  the  morning,  if  the  officer  required  his  attendance 
from  day  to  day.  People  v.  Stone,  10  Paige,  606.  But  he  is  not 
bound  to  keep  the  prisoner  always  in  sight,  and  if  the  prisoner 
go  about  for  a  short  time  on  his  own  business,  it  is  not  an 
escape.  Hassavi  v.  Griffin,  18  Johns.  48.  Section  2014  cited  is 
a  re-enactment  of  §  20,  2  R.  S.  562  (2  Edmunds,  582),  with 
the  addition  of  the  last  sentence  providing  for  the  case  of  a 
capital  offence. 

Precedent  for  Petition  and  Writ. 

To  the  County  Judge  of  Onondaga  County  : 

The  petition  of  Frederick  I^asher  respectfully  shows  that  he  is 
defendant  in  an  action  in  the  Supreme  Court  in  the  county  of  Onon- 
daga, in  which  Charles  Randall  is  plaintiff.  That  his  testimony  as  a 
witness  is  material  and  necessary  on  the  trial  of  said  action,  as  he  is 
advised  by  his  counsel,  John  Wilkinson,  and  verily  believes.  That  your 
petitioner  is  confined  in  the  Onondaga  county  jail,  under  execution 
against  his  body  in  a  civil  action  in  which  one  Ambrose  Wattles  was 
plaintiff,  and  your  petitioner  defendant.  Your  petitioner  further  shows 
that  the  action  in  which  said  Randall  is  plaintiff  is  noticed  for  trial  at 
a  Circuit  Court  to  be  held  at  the  court-house  in  the  city  of  Syracuse,  on 
the  20th  day  of  April,  1897,  and  that  this  application  is  made  in  good 
faith  to  enable  your  petitioner  to  attend  such  trial  as  a  witness. 

Wlierefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  to  testify 
issue,  commanding  the  sheriff  of  the  county  of  Onondaga  to  have  your 
petitioner  before  said  Circuit  Court  on  said   20th  day  of  April,  1897, 


THE    WRIT    OF    HABEAS    CORPUS.  55 

Art.   I.     Precedent  for  Return  by  Sheriff. 

and  such  other  days  to  which  said  cause  shall  be  adjourned  to  enable 
him  to  testify  in  said  action.  FREDERICK  LASHER 

{Add  verification  as  to  pleading?) 

The  People  of  the  State  of  JVezo    York,  ex  ret.  Frederick  Lasher,  to  the 
Sheriff  of  the  County  of  Onondaga,  greeting  : 

We  command  you  that  you  have  the  body  of  Frederick  Lasher 
detained  in  the  county  jail  of  the  county  of  Onondaga,  before  our 
Circuit  Court  at  a  term  thereof  to  be  held  at  the  court-house  in  the 
city  of  Syracuse  on  the  20th  day  of  April,  1897,  at  the  opening  of  the 
court  on  that  day  and  on  such  other  days  during  said  term  to  which 
the  cause  entitled  Charles  Randall  against  Frederick  Lasher  shall  be 
adjourned,  in  your  custody,  under  safe  and  secure  conduct,  to  testify  as 
a  witness  in  said  action. 

And  immediately  after  the  said  Frederick  Lasher  shall  have  testified 
in  said  action,  that  then  you  return  him  to  the  said  county  jail  under 
safe  conduct  and  have  you  then  there  this  writ. 

Witness,    Hon.    Joshua    Forman,    county   judge    of   Onondaga 
[l.  s.]       County,  at  the  court-house  in  the  city  of  Syracuse  this   15th 
day  of  April,  1897.  A.  BREEZE, 

J.  WILKINSON,  Clerk. 

Attorney  for  Petitiojier. 

The  writ  should  be  indorsed  "  Granted  this  15th  day  of  April, 
1897,  J.  Forman,  county  judge  of  Onondaga  county,"  as  provided 
by  §  1996,  and  must  also  be  accompanied  on  delivery  to  the 
sheriff  by  the  bond  provided  for  by  §  2000. 

Precedent  for  Return  by  Sheriff. 

The  return  of  Willard  Marsh,  sheriff  of  Onondaga  County,  to  the  writ 
of  habeas  corpus  commanding  him  to  bring  up  the  body  of  Frederick 
Lasher  to  testify  at  a  Circuit  Court  to  be  held  at  the  court-house  in 
Syracuse  on  the  20th  day  of  April,  1897,  shows  :  In  obedience  to  said 
writ  I  certify  that  the  said  Frederick  Lasher  was  heretofore  committed 
to  the  county  jail  of  said  county,  and  is  now  held  by  virtue  of  an  exe- 
cution against  his  body  in  favor  of  one  Ambrose  Wattles. 

All  of  which  I  hereto  certify  and  have  here  the  body  of  said  Fred- 
erick Lasher,  as  by  said  writ  commanded. 

Dated  April  20,  1897.  WILLARD  MARSH, 

Sheriff. 


CHAPTER  IV. 

THE  WRIT  OF  HABEAS  CORPUS  AND  THE  WRIT  OF 
CERTIORARI  TO  INQUIRE  INTO  THE  CAUSE  OF 
DETENTION.* 

PAGE. 

Article  i.     When  habeas  corpus  granted.     §§  2066,  2015,  2044, 

2016 57 

2.  What  court  may  grant  writ  and  applicatio    therefor. 

§§2017,  2018,   2019,2021,2023 77 

3.  Duty  of  court,  officer  or  other  person,  relative  to  writ. 

§§  2025,  2051,  2052,  2053,  2020,   2065 92 

4.  Return  must  be  made  to  writ  and  notice  of  hearing. 

§§  2024,  2026,  2027,  2037,  2038 93 

5.  Proceedings  on  return.     §§  2031,  2032,  2033,  2034, 

2036,  2039,  2040 103 

6.  Proceedings  when  prisoner  discharged  and  effect  of 

discharge.      §§   2048,  2049,  2050 122 

7.  Proceedings    when    prisoner    entitled    to   bail.       §§ 

2035,  2045,  2046,  2047 124 

8.  When  warrant  or  warrant  of  attachment  issues.     §§ 

2054,  2055,  2056,  2057,  2028,  2029,  2030 125 

9.  Certiorari    to    inquire  into  cause    of  detention.       §§ 

2022,  2041,  2042,  2043 130 

10.     Appeal.       §§   2058,    2059,    2060,  2061,  2062,    2063, 

2064 135 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SBC.  ART.    PAGE. 

2015.  Who  entitled  to  prosecute  the  writs.     Habeas  corpus  may  issue  on 

Sunday i  58 

2016.  When  neither  writ  shall  be  allowed i  61 

2017.  How  and  to  whom  application  for  habeas  corpus  or  certiorari  made.  2  77 

2018.  Application  in  another  county  ;  proof  required 2  77 

2019.  Contents  of  petition 2  77 

2020.  When  writ  must  be  granted ;  penalty  for  refusing 3  92 

2021.  Form  of  writ  of  habeas  corpus 2  7g 

2022.  Form  of  writ  of  certiorari ....  9  130 

2023.  When  writ  returnable  before  another  judge 2  78 

2024.  When  writ  sufficient 4  93 

2025.  When  writ  to  issue  without  application 3  92 

2026.  Return  ;  its  contents 4  93 

*  This  .subject  is  treated  in  Hurd  on  Habeas  Corpus,  Church  on  Habeas  Corpus, 
American  and  I'lnglish  Encyclopaedia  of  Law.  vol.  9,  title  Habeas  Corpus,  Spelling 
on  Extraordinary  Relief,  Wood  on  Habeas  Corpus,  Mandamus,  etc-  Law  Reports 
Annotated,  vol.  i,  page  373,  vol.  4,  page  236,  vol.  10,  page  616,  vol.  11,  page  614,  con- 
tain notes  relative  to  Habeas  Corpus. 

56 


WRIT   OF   HABEAS   CORPUS.  57 


Art.   I.     When  Habeas  Corpus  Granted. 


ART.    PAGE. 

94 


SEC. 

2027.  Habeas  corpus  ;  body  of  prisoner  to  be  produced,  unless,  etc 4 

2028.  Proceedings  on  disobedience  of  writ 8  126 

2029.  Id. ;   precept  to  bring  up  prisoner 8  126 

2030.  Id. ;   power  of  county  may  be  called    8  126 

2031.  Proceedings  on  return  of  habeas  corpus c  103 

2032.  When  prisoner  to  be  remanded c  103 

2033.  When  to  be  discharged  in  civil  cases 5  103 

2034.  The  last  section  qualified c  jq^ 

2035.  Proceedings  on  irregular  commitment 7  1 24 

2036.  Id.;  when  prisoner  maybe  committed  to  another  officer 5  104 

2037.  Custody  of  prisoner  pending  the  proceedings 4  94 

2038.  Notice  to  person  interested  in  detention 4  04 

2039.  Prisoner  may  controvert  return  ;  proofs  thereupon c  104 

2040.  Proceedings  upon  sickness,  etc.,  of  prisoner c  104 

2041.  When  certiorari  to  issue  on  application  for  habeas  corpus 9  130 

2042.  Proceedings  upon  its  return 9  i  ^o 

2043.  Id.;  when  discharge  to  be  granted  ;  when  proceedings  to  cease 9  131 

2044.  When  certiorari  does  not  prevent  habeas  corpus i  eg 

2045.  l^^il  o"  certiorari :  when  and  how  ordered 7  124 

2046.  Id. ;  by  whom  and  how  taken 7  124 

2047.  Discharge  of  prisoner  bailed 7  124 

2048.  Order  substituted  for  writ  of  discharge  ;  service  and  effect  thereof.  6  122 

2049.  Enforcing  order  for  discharge ;  penalty,  etc 6  122 

2050.  When  prisoner  discharged  not  to  be  re-imprisoned;  when  he  may  be.  6  122 

2051.  Penalty  for  violating  the  last  section 3  92 

2052.  Id. ;  for  concealing  prisoner,  etc.,  to  avoid  writ 3  92 

2053.  Id. ;  for  aiding,  etc 3  92 

2054.  Warrant  to  bring  up  prisoner  about  being  removed 8  125 

2055.  When  offender  to  be  arrested 8  1 26 

2056.  Execution  of  warrant ;  proceedings  to  relieve  prisoner 8  126 

2057.  Id. ;  proceedings  to  punish  offender 8  1 26 

2058.  When  appeal  may  be  taken  in  cases  under  this  article 10  135 

2059.  Id. ;  by  people : 10  135 

2060.  Prisoner  who  appeals  may  be  admitted  to  bail 10  136 

2061.  Id. ;  recognizance,  etc 10  136 

2062.  Id. ;  on  appeal  to  Court  of  Appeals 10  136 

2063.  Custody  of  prisoner  until  he  gives  bail 10  136 

2064.  Recognizance  valid  for  adjourned  terms 10  136 

2065.  Penalty  for  refusing  copy  of  process,  etc 3  93 

2066.  Application  of  this  article  to  other  writs  of  habeas  corpus i  58 

ARTICLE  I. 

When  Habeas  Corpus  Granted.  §§  2066,  2015,  2016,  2044. 
Dom.  Rel.  Law,  §§  40,  41.  Code  Criminal  Procedure,  §827, 
sub.  2. 

Sub.    I.    Nature  and  purpose  of  the  writ.    §§  2066,  2015,  2044. 

2.     When  writ  granted  on  behalf  of  persons  imprisoned.    §  2016. 


58  WRIT   OF   HABEAS   CORPUS. 


Art.   I.     When  Habeas  Corpus  Granted. 


3.  When  writ  granted  to  determine  custody  of  child.     Dom.  Rel. 

Law,  §§  40,41- 

4.  When   writ  granted    in    extradition    cases.     Code    Criminal    Pro- 

cedure, §  827,  sub.  2. 

Sub.   I.     Nature  AND  Purpose  OF  the  Writ.     §§'2066,  2015,  2044. 

§  2066.  Application  of  this  article  to  other  writs  of  habeas  corpus. 

Except  as  otherwise  expressly  prescribed  by  statute,  the  provisions  of  this  article 
apply  to  and  regulate  the  proceedings  upon  every  common-law  or  statutory  writ  of 
habeas  corpus,  as  far  as  they  are  applicable ;  and  the  authority  of  a  court  or  a  judge, 
to  grant  such  a  writ,  or  to  proceed  thereupon,  by  statute  or  the  common  law,  must 
be  exercised  in  conformity  to  this  article,  in  any  case  therein  provided  for. 

§  2015.  Who  entitled  to  prosecute  the  writs.  Habeas  corpus 
may  issue  on  Sunday. 

A  person  imprisoned  or  restrained  in  his  liberty,  within  the  State,  for  any  cause, 
or  upon  any  pretence,  is  entitled,  except  in  one  of  the  cases  specified  in  the  next 
section,  to  a  writ  of  habeas  corpus  or  a  writ  of  certiorari,  as  prescribed  in  this  article, 
for  the  purpose  of  inquiring  into  the  cause  of  the  imprisonment  or  restraint,  and,  in 
a  case  prescribed  by  law,  of  delivering  him  therefrom.  A  writ  of  habeas  corpus  may 
be  issued  and  served  under  this  section,  on  the  first  day  of  the  week,  commonly 
called  Sunday;  but  it  cannot  be  made  returnable  on  that  day. 

§  2044.  When  certiorari  does  not  prevent  habeas  corpus. 

Notwithstanding  a  writ  of  certiorari  has  been  issued  or  returned,  as  prescribed  in 
this  article,  the  court  or  judge,  before  which  or  whom  it  is  returnable,  may  issue  a 
writ  of  habeas  corpus,  which  is,  in  all  respects,  subject  to  the  foregoing  provisions  of 
this  article,  relating  to  the  latter  writ.  If  the  court  or  judge  refuses  a  writ  of  cer- 
tiorari, or,  upon  the  return  thereof,  refuses  to  discharge  the  prisoner,  the  latter  may 
claim,  and  is  entitled  to,  the  writ  of  habeas  corpus,  as  prescribed  in  this  article. 

The  writ  of  habeas  corpus  is  directed  to  a  person  detaining 
another,  and  commands  him  to  produce  the  body  of  the  person 
detained  at  a  certain  time  and  place,  with  the  time  and  cause  of 
the  detention,  and  to  do,  submit  to,  and  receive  whatsoever  the 
court  or  judije  awarding  the  writ  shall  determine  in  that  behalf. 
It  is  a  high  prerogative  writ,  summary  in  its  character,  its  object 
being  to  free  from  illegal  restraint.  It  is  not  intended  to  re-try 
issues  of  fact  or  review  the  proceedings  of  a  legal  trial. 
Ex  parte  Watkins,  3  Pet.  (U.  S.)  201  ;  Wales  v.  Whitney,  1 14  U.  S. 
571  ;  Church  on  Habeas  Corpus,  §  177  ;  American  &  English 
Encyc.  of  Law,  vol.  9,  p.  163;  Matter  of  Wright,  29  Hun,  357, 
65  How.  119. 

It  is  a  civil  proceeding  to  enforce  a  civil  right.  Ex  parte  Tom 
Tang,  108  U.  S.  556.     Relief  from  illegal  imprisonment  by  means 


WRIT   OF   HABEAS   CORPUS,  59 

Art.   I.     When  Habeas  Corpus  Granted. 

of  this  remedial  writ  is  not  the  creature  of  any  statute.  Tlie 
history  of  the  writ  is  lost  in  antiquity.  It  was  in  use  before 
Magna  Charta,  and  came  to  us  as  part  of  our  inheritance  from 
the  mother  country,  and  exists  as  part  of  the  common  law  of  the 
State.  It  is  intended  and  well  adapted  to  effect  the  great  object 
secured  in  England  by  Magna  Charta,  and  made  part  of  our  Con- 
stitution that  no  person  shall  be  deprived  of  his  liberty  "  without 
due  process  of  law."  This  writ  cannot  be  abrogated  or  its  efficiency 
curtailed  by  legislative  action.  Cases  within  the  relief  afforded 
by  it  at  common  law  cannot,  until  the  people  voluntarily  sur- 
render the  right  to  this  the  greatest  of  all  writs  by  an  amendment 
of  the  organic  law,  be  placed  beyond  its  reach  and  remedial 
action.  The  privilege  of  the  writ  cannot  even  be  temporarily 
suspended  except  for  the  safety  of  the  State  in  cases  of  rebellion 
or  invasion.  The  provisions  of  the  Constitution  relative  thereto 
are  transcripts  of  the  former  Constitution.  People  ex  rcl.  Tzvecd 
v.  Lisconib,  60  N.  Y.  559.  The  writ  cannot  be  used  as  a  substi- 
tute for  an  appeal  or  writ  of  error.  Ex  parte  Yarboroiigh,  no 
U.  S.  651.  Its  purpose  is  not  to  review  trials.  Matter  of  Moses, 
13  Abb.  N.  C.  189,  66  How  296;  Wales  v.  Whitney,  114  U.  S. 
571.  Nor  is  it  properly  used  to  try  rights  of  guardianship. 
People  V.  Mercein,  8  Paige,  47 ;  People  v.  Wilcox,  22  Barb. 
186. 

This  article  of  the  Code  revises  and  codifies  the  practice  on  the 
writ  of  habeas  corpus,  but,  as  is  said  by  the  codifiers,  makes  few 
changes,  for  the  reason  that  the  original  provisions  of  the  Revised 
Statutes  were  modelled  upon  Livingston's  Criminal  Code  for 
Louisiana,  which  has  been  regarded  as  a  masterpiece  of  its  kind, 
following  closely  as  it  does  the  Code  Napoleon. 

Habeas  corpus  is  a  common-law  writ ;  its  privilege  is  preserved 
by  the  organic  law  of  the  State  of  New  York,  and  its  legitimate 
purpose  cannot  be  denied  by  statute.  It  is  not  available  to 
inquire  thereby  into  the  mere  legality  or  justice  of  a  judgment 
or  mandate,  if  the  term  "  legality"  or  "justice"  is  not  used  so 
as  to  include  questions  of  jurisdiction  or  power  ;  but  the  want  of 
jurisdiction  of  a  tribunal  to  pronounce  a  judgment  or  mandate, 
by  which  a  prisoner  is  placed  and  detained  in  custody,  furnishes 
to  him  the  right  to  resort  to  such  writ  for  relief,  and  that  is  the 
subject  of  inquiry  thereunder.  If  a  party  is  held  in  custody  only 
by  virtue   of  a  judgment  pronounced  when  there  is  no  jurisdic- 


6o  WRIT   OF   HABEAS   CORPUS. 

Art.   I.     When  Habeas  Corpus  Granted. 

tion  to  pronounce  the  same,  either  on  account  of  want  of 
jurisdiction  or  by  reason  of  its  being  in  excess  of  jurisdiction,  the 
judgment  is  void,  and  he  is  not  put  to  an  appeal  therefrom,  but 
may  be  released  by  habeas  corpus.  People  ex  rel.  Young  v.  Stout, 
8i  Hun,  336,  63  St.  Rep.  155,  30  Supp.  898,  afifirmed,  144  N.  Y. 
699,  without  opinion. 

For  the  distinction  between  a  writ  of  certiorari  to  inquire 
into  the  cause  of  detention,  and  the  writ  of  certiorari  to  re- 
vie\f  a  determination,  see  Peo.  ex  rel.  Taylor  v.  Seaman,  8  Misc. 

153- 

Under  §  2015,  habeas  corpus  may  be  had  to  determine  the 
right  to  the  custody  of  an  infant,  and,  in  determining  this  sub- 
ject, the  jurisdiction  of  the  court  is  equitable  in  its  character. 
Where  such  writ  is  dismissed  without  prejudice  to  the  renewal 
of  the  application,  there  is  no  final  adjudication  in  the  matter, 
and  such  dismissal  will  not  be  reviewed  by  the  Court  of  Appeals. 
Peo.  ex  rel.  Pruyn  v.  Walts,  122  N.  Y.  241.  See  Peo.  ex  rel. 
McLaughlin  v.  Wilson,  88  Hun,  260,  as  to  when  a  judge  must 
remand  the  prisoner  to  custody  upon  a  writ  of  habeas  corpus. 
As  from  this  section  and  others  regulating  habeas  corpus  to 
inquire  into  the  cause  of  the  detention,  nothing  must  be  allowed 
as  a  bar  or  impediment  to  the  allowance  of  this  writ  ;  therefore 
security  for  costs  cannot  be  required  of  a  non-resident  relator. 
Peo.  ex  rel.  James  v.  The  Society  for  the  Prevention  of  Criielty  to 
Children,  19  Misc.  ^"JJ.  The  granting  of  the  writ  of  habeas  cor- 
pns\.o  review  a  sentence,  the  imprisonment  under  a  valid  require- 
ment of  which  has  not  expired,  is  premature.  Peo.  ex  rel.  Bedell 
V.  Kinney,  24  App,  Div.  309,  48  Supp.  749,  82  St.  Rep.  749. 
In  the  absence  of  proof  as  to  the  binding  force  of  a  deter- 
mination in  habeas  corpus  proceedings  in  the  State  in  which 
it  was  made,  it  is  conclusive. in  this  State  only  upon  an  identical 
state  of  facts.  Peo.  v.  Dewey,  23  Misc.  267,  50  Supp.  1013,  84  St. 
Rep.  1013. 

Habeas  corpus  proceedings  which  arc  founded  on  a  writ  served 
on  Sunday,  in  violation  of  the  law  of  a  foreign  State  in  which 
tiiey  are  brought,  are  void,  and  the  defect  in  service  cannot  be 
waived  by  appearance.  People  v.  Deivey,  23  Misc.  267,  50  Supp. 
1013,84  St.  Rep.  1013.  But  see  §  2015  Code  Civ.  Pro.  as  to 
issue  and  service  of  habeas  corpus  on  Sunday  in  this  State,  where 
it  is  allowed. 


WRIT   OF  HABEAS   CORPUS.  6l 


Art.   I.     When  Habeas  Corpus  Granted. 


Sub.  2.  When  Writ  Granted  on  Behalf  of    Persons  Imprisoned. 

§  2016. 

g  2016.  When  neither  writ  shall  be  allowed. 

A  person  is  not  entitled  to  either  of  the  writs  specified  in  the  last  section,  in  either 
of  the  following  cases  : 

1.  Where  he  has  been  committed,  or  is  detained,  by  virtue  of  a  mandate,  issued  by 
a  court  or  a  judge  of  the  United  States,  in  a  case  where  such  courts  or  judges  have 
exclusive  jurisdiction  under  the  laws  of  the  United  States,  or  have  acquired  exclusive 
jurisdiction  by  the  commencement  of  legal  proceedings  in  such  a  court. 

2.  Where  he  has  been  committed,  or  is  detained,  by  virtue  of  the  final  judgment  or 
decree,  of  a  competent  tribunal  of  civil  or  criminal  jurisdiction  ;  or  the  final  order  of 
such  a  tribunal,  made  in  a  special  proceeding,  instituted  for  any  cause,  except  to  punish 
him  for  a  contempt ;  or  by  virtue  of  an  execution  or  other  process,  issued  upon  such 
a  judgment,  decree,  or  final  order. 

The  leading  case  relative  to  the  right  to  the  writ  of  habeas  cor- 
pus to  relieve  from  imprisonment,  is  People  ex  rel.  Tweed  v.  Lis- 
comb,  60  N.  Y.  559.  It  is  there  held  that  the  provisions  of  the 
Habeas  Corpus  Act,  then  part  of  the  Revised  Statutes  (this  de- 
cision having  been  before  the  Code  of  1880),  excluding  from  its 
benefit  persons  committed  or  detained  by  virtue  of  the  judgment 
or  decree  of  a  competent  tribunal,  only  applies  where  the  tribunal 
has  jurisdiction  to  render  the  judgment  under  some  circum- 
stances ;  that  the  prohibition  forbidding  an  inquiry  upon  return 
to  the  writ  into  the  legality  and  justice  of  any  process,  judgment, 
decree,  or  execution,  does  not  take  from  the  court  or  ofifierhaving 
jurisdiction  of  the  writ  the  power  or  relieve  from  the  duty  of 
determining  whether  the  judgment  or  process  emanated  from  the 
court  of  coinpetent  jurisdiction,  and  whether  the  court  had  the 
power  to  give  the  judgment  or  issue  the  process.  There  must  be 
jurisdiction  by  the  court  to  render  the  particular  judgment,  as 
well  as  jurisdiction  of  the  prisoner  and  of  the  subject-matter  ;  and 
while  the  court  or  officer  cannot  upon  return  of  the  writ  go 
behind  the  judgment  and  inquire  into  alleged  errors  and  irregu- 
larities preceding  it,  the  question  is  presented  and  must  be  de- 
termined whether  upon  the  whole  record  the  judgment  was  war- 
ranted by  law  and  was  within  the  jurisdiction  of  the  court  ;  that 
the  presumption  in  favor  of  the  jurisdiction  of  a  court  of  general 
jurisdiction  is  not  conclusive,  but  may  be  rebutted  ;  and  where 
the  record  shows  the  judgment  is  such  as  could  not,  under  any 
circumstances  or  upon  any  state  of  facts,  have  been  pronounced, 
the  applicant  is  entitled  to  be  discharged  ;  or  if  it  is  in  excess 
of  that  which  by  law  the  court  has  power  to  make,  it  is  void  for 


62  WRIT    OF    HABEAS    CORPUS. 


Art.    I.     When  Habeas  Corpus  Granted. 


the  excess  and  can  be  so  declared.  This  case  reviews  the  history 
of  the  writ,  discusses  its  importance  and  lays  down  the  principles 
upon  which  it  is  granted,  and  has  by  the  construction  of  the 
Habeas  Corpus  Act  enlarged  the  scope  of  the  writ  and  defined  its 
application.  Judge  Allen  says  at  page  591  of  the  opinion  :  "  If 
the  punishment  for  the  offence  is  fixed  by  statute,  a  judgment  in 
excess  of  the  statutory  limit  is  void  for  the  excess  as  we  have 
seen  by  the  adjudged  cases.  A  party  held  by  virtue  of  judg- 
ments thus  pronounced,  and  therefore  void  for  want  of  jurisdic- 
tion, is  not  put  to  his  writ  of  error  but  may  be  released  by  habeas 
corpus^  In  Woolfv.  Jacobs,  66  N.  Y.  8,  however,  the  Tweed  case 
was  distinguished,  and  it  was  held  that  in  proceedings  under  the 
statute  for  contempt,  the  court  had  jurisdiction  to  determine  the 
amount  of  costs  and  expenses  to  be  imposed  as  a  fine  in  case  the 
party  was  adjudged  in  contempt,  and  if  items  were  included 
which  ought  not  to  be  allowed,  it  was  not  in  excess  of  jurisdic- 
tion and  did  not  render  the  commitment  void,  and  the  action 
could  not  be  reviewed  on  habeas  corpus.  Referringto  the  Tweed 
case,  it  is  said  in  the  opinion  of  Rapallo,  J.,  "  How  that  decision 
can  have  been  so  misinterpreted,  it  is  difficult  to  comprehend," 
and  the  opinion  then  states  that  what  is  decided  in  the  Tweed 
case  is  "  that  where  the  punishment  for  a  crime  is  defined  and 
limited  by  statute,  and  the  court  has  imposed  a  sentence  to  the 
full  limit  allowed  by  statute,  it  has  exhausted  its  authority  in  the 
case,  and  that  if  it  proceeds  to  impose  further  additional  sen- 
tences, the  latter  are  void  and  afford  no  justification  for  the  de- 
tention of  the  prisoner  after  he  has  served  out  the  full  term  of 
imprisonment  which  the  statute  empowered  the  court  to  impose 
upon  him,  and  that  he  is  then  entitled  to  his  discharge  on  habeas 
cor  pus  y 

The  competency  of  the  tribunal  to  render  the  judgment  or 
decree  under  which  a  person  is  held  in  custody  and  its  jurisdic- 
tion over  him  either  as  to  matter,  place,  sum,  or  person  is  by  the 
strictest  implication  made  the  subject  of  inquiry  upon  a  hearing 
before  a  judge  or  court  issuing  a  writ  of  habeas  corpus,  and  the 
court  is  thereby  expressly  required  upon  the  return  of  such  a  writ 
to  institute  an  inquiry  into  the  cause  of  detention  and  discharge 
the  prisoner  when  there  is  a  lack  of  jurisdiction  on  the  part  of  the 
tribunal  making  an  order  for  his  detention.  People  ex  rcl.  Frcy 
V.  The  Warden,  etc.,  lOO  N.  Y.  20. 


WRIT   OF   HABEAS   CORPUS.  65 

Art.   I.     When  Habeas  Corpus  Granted. 

In  People  ex  rel.  Trainor  v.  Baker,  89  N.  Y.  460,  it  was  held  that 
where  a  sentence  was  excessive,  the  prisoner  was  not  entitled  to 
his  discharge  until  the  expiration  of  the  sentence  which  the  court 
had  power  to  impose.  In  People  ex  rel.  Devoe  v.  Kelly,  97  N.  Y. 
212,  held,  that  where  a  person  convicted  of  an  offence  was  sentenced 
to  imprisonment  at  hard  labor,  in  State  prison,  the  sentence  being 
void  and  the  conviction  valid,  the  prisoner  was  not  entitled  to  a 
discharge  on  habeas  corpus  and  must  be  remanded  to  the  custody 
of  the  sheriff;  that  the  trial  court  might  deal  with  him  according 
to  law. 

When  in  proceedings  by  habeas  eorpus,  it  appears  that  the 
person  is  held  in  custody  under  a  commitment  issued  by  a  magis- 
trate, the  only  inquiry  is  whether  the  magistrate  had  jurisdiction 
of  the  case  and  authority  to  pronounce  the  judgment  rendered  for 
the  cause  assigned.  The  decision  of  the  magistrate  may  not  be 
reviewed,  and  so  it  is  not  essential  to  return  the  evidence  upon 
the  trial.  If  the  process  be  valid  on  its  face,  the  burden  of  im- 
peaching its  validity  rests  upon  the  prisoner.  People  ex  rel.  Dan- 
ziger  V.  P.  E.  House  of  Merey,  128  N.  Y.  180,  40  St.  Rep.  160, 
reversing  59  Hun  624  and  13  Supp.  401.  In  People  ex  rel.  Stokes 
V.  Rtseley,  38  Hun,  280,  the  rule  laid  down  in  89  N.  Y.  460, 
60  N.  Y.  559,  and  as  explained  66  N.  Y.  10,  is  held  and  fol- 
lowed, the  rule  enunciated  being:  "Final  judgment  must  be 
that  of  a  competent  tribunal  to  pronounce  the  judgment,  and 
where  competency  to  pronounce  is  exhausted  or  never  existed 
it  does  not  come  within  the  definition  of  the  final  judgment  as  to 
which  habeas  eorpus  is  ineffective."  This  case  with  others  is  cited, 
and  followed  in  People  v.  Carter,  48  Hun,  165,  14  Civ.  Pro.  241, 
15  St.  Rep.  640. 

The  Bill  of  Rights  contains  the  following  important  provisions 
relative  to  the  writ  : 

§  10.    Writ  of  habeas  corpus  not  to  be  suspended. 

The  privilege  of  the  writ  of  habeas  corpus  cannot  be  suspended,  unless,  when  in 
case  of  rebellion  or  invasion,  the  public  safety  may  require  its  suspension. 

By  Code,  §157,  the  sheriff  or  keeper  of  a  jail  is  directed  to  obey 
a  writ  of  habeas  corpus  relative  to  a  prisoner  committed  to  the 
jail  upon  process  for  contempt  after  conviction.  Section  2282 
regulates  the  proceedings  by  writ  of  habeas  eorpus  where  the 
prisoner  has  been  committed  for  contempt. 

Section  2  of  chap.  357  of  the  Laws  of  1873  provides  for  a  writ 


64  WRIT   OF    HABEAS   CORPUS. 


Art.   I.     When  Habeas  Corpus  Granted. 


of  habeas  corpus  upon  commitment  by  a  police  magistrate  of  a 
disorderly  person. 

Section  99  of  the  Penal  Code  provides  that  during  a  session  of 
the  Court  of  Oyer  and  Terminer  in  any  county  no  prisoner  de- 
tained in  a  county  jail  in  such  county  upon  a  criminal  charge 
shall  be  removed  therefrom  by  a  writ  of  habeas  corpus  unless  such 
writ  be  issued  by  or  is  returnable  before  such  court. 

Section  464  of  the  Penal  Code  provides  that  a  person  arrested 
under  the  provisions  relative  to  impure  food  may  be  discharged 
upon  a  writ  of  habeas  corpus  upon  executing  the  bond  required 
by  law. 

Section  1 5  of  the  Revised  Statutes  relative  to  the  powers,  duties, 
and  obligations  of  trustees  and  assignees,  contains  provisions  for 
a  writ  of  habeas  corpus  where  a  person  has  been  committed  under 
the  provisions  of  that  title. 

Under  the  Insanity  Law,  §  73,  an  insane  person  is  entitled  to  the 
writ.     The  provisions  are  as  follows: 

§  73.    Habeas  corpus. 

Any  one  in  custody  as  an  insane  person  is  entitled  to  a  writ  of  habeas  corpus,  upon 
a  proper  application  made  by  him  or  some  friend  in  his  behalf.  Upon  the  return  of 
such  writ,  the  fact  of  his  insanity  shall  be  inquired  into  and  determined.  The  medi- 
cal history  of  the  patient,  as  it  appears  in  the  case  book,  shall  be  given  in  evidence, 
and  the  superintendent  or  medical  officer  in  charge  of  the  institution  wherein  such 
person  is  held  in  custody,  and  any  proper  person,  shall  be  sworn  touching  the  mental 
condition  of  such  person. 

Section  2307  of  the  Code  of  Civil  procedure  relative  to  proceed- 
ings to  discover  the  death  of  a  tenant  for  life,  provides  that  in 
proceedings  for  that  purpose  the  writ  of  habeas  corpus  may  be 
issued  to  bring  up  a  person  imprisoned  within  a  State  prison 
before  any  court  or  before  a  referee,  as  the  case  requires,  except 
upon  a  sentence  for  a  felony. 

The  decisions  which  follow  show  the  right  to  the  writ  under 
the  circumstances  of  the  particular  case. 

A  prisoner  may  be  brought  up  on  this  writ  and  inquiry  made 
into  the  jurisdiction  of  the  committing  magistrate  or  court  pass- 
ing sentence.  Devlin  s  Case,  5  Abb.  Pr.  281  ;  People  v.  Cassells, 
5  Hill,  164;  Catlin  v.  Neilson,  16  Hun,  214  ;  People  ex  rel.  Stokes 
V.  Risely,  38  id.  280  ;  People  ex  rel.  Tzveed  v.  Liscomb,  60  N.  Y. 
559.  Or  that  the  court  committing  him  was  not  legally  con- 
stituted. Matter  of  Devine,  21  How.  Pr.  80;  People  v.  Devine,  5 
Park.  Cr.  42.     If,  upon  the  whole  record,  the  judgment  was  not 


WRIT    OF    HABEAS    CORPUS.  65 

Art.   I.     When  Habeas  Corpus  Granted. 


warranted  by  law  the  writ  is  available.  The  court  \Yill  examine 
to  see  whether  there  was  jurisdiction  to  render  the  particular 
judgment.  People  ex  rel.  Tiveed  v.  Liscoml\  60  N.  Y.  559. 
Where  the  process  issued  is  not  allowed  by  law  the  writ  will 
issue.  Squire  s  Case,  12  Abb.  Pr.  38.  The  legality  of  arrest 
under  civil  process  may  thus  be  inquired  into.  People  v.  Kelly, 
35  Barb.  444;  Peoples.  Willct,  6  Abb.  Pr.  37;  S.  C.  15  How. 
210.  But  see  Cable  v.  Cooper,  15  Johns.  152  ;  Bank  v.  Jenkins,  18 
id.  305.  The  prisoner  may  have  the  writ  before  indictment  to 
inquire  whether  the  evidence  was  sufficient  to  hold  him.  People 
V.  Martin,    i    Park.    Cr.    187;  People  v.    Tompkins,  id.  224;  Ex 

parte  Tayloe,  5  Cow.  39  ;  People  v.  Stanley,  18  How.  179.  When 
a  prisoner  is  improperly  held  by  coroner  the  writ  issues.  People 
V.  Budge,  4  Park.  Cr.  519.  But  it  will  not  issue  to  inquire  as  to 
sufficiency  of  indictment.  People  v.  McLeod,  25  Wend.  483; 
S.  C.  I  Hill,  377;  People  v.  Rnlloff,  5  Park.  Cr.  T^.  It  has  been 
held  that  the  correctness  of  a  sentence  as  to  the  place  of  impris- 
onment cannot  be  thus  inquired  into.  People  ex  rel.  Rice  v. 
Keeper  of  Penitentiary,  37  How.  494.  Nor  can  the  question  be 
raised  on  habeas  as  to  whether  a  former  trial  is  a  bar  to  an  indict- 
ment. People  v.  Rulloff,  3  Park.  Cr.  126.  But  the  sufficiency  of 
a  commitment  may  be  inquired  into.  Abbott's  Dig.,  vol.  3,  p. 
566.  Informality  in  a  commitment  for  contempt  is  not  available 
on  habeas  corpus.  People  v.  Nevins,  i  Hill,  154;  Davidson  s  Case, 
13  Abb.  Pr.  129;  Peoples.  Goodhue,  2  Johns.  Ch.  198;  People  ex 
rel.  Kearny  v.  Kelly,  22  How.  Pr,  309  ;  Kahns  Case,  1 1  Abb.  147 ; 
S.  C.  19  How.  475.  Only  two  questions  can  be  inquired  into  in 
such  case — jurisdiction  and  form  of  commitment.  People  v. 
Sheriff  of  New  York,  29  Barb.  622.  In  case  the  alleged  contempt 
is  innocent  or  meritorious,  the  writ  will  lie,  and  it  may  be  ques- 
tioned collaterally  on  habeas.  People  ex  rel.  Hackley  v.  Kelly,  24 
N.  Y.  74.  An  order  committing  a  party  for  a  civil  contempt, 
which  fails  to  comply  with  the  law  that  it  shall  adjudge  that  the 
misconduct  complained  of  was  calculated  to,  or  did  actually 
defeat,  impair,  impede,  or  prejudice  the  rights  or  remedies  of  a 

.  party,  furnishes  no  foundation  for  imprisonment  and  is  without 
jurisdiction.  The  party  is  entitled  to  be  relieved  from  imprison- 
ment on  habeas.  Matter  of  Szvenarton,  40  Hun,  41.  If  confined 
as  for  a  contempt  for  non-payment  of  money,  see  People  v. 
Cowles,  4  Keyes,  38,  distinguished,  69  N.  Y.  544;  Matter  of 
5 


^  WRIT   OF   HABEAS   CORPUS. 

Art.   I.     When  Habeas  Corpus  Granted. 

Watson,  5  Lans.  466.  Under  §  50  of  the  former  Habeas  Corpus 
Acta  pardon  might  be  proven  under  the  writ.  /;/  re  Edyvioin,  8 
How.  478.  The  writ  was  held  to  lie  to  bring  the  prisoner  from 
the  jail  in  one  county  to  another.  People  v.  Mason,  9  Wend, 
505.  A  person  committed  under  the  judgment  of  a  competent 
tribunal  cannot  have  the  writ.  People  ex  rel.  Phelps  v.  Oyer  and 
Terminer  of  New  York,  14  Hun,  21.  The  constitutionality  of  an 
act  under  which  a  commitment  was  made  cannot  be  inquired 
into.  Matter  of  Donohue,  i  Abb.  N.  C.  i.  Legality  of  judg- 
ment of  a  court-martial  having  jurisdiction  cannot  be  inquired 
into.  Underhill  v.  Fullerton,  10  Hun,  63.  A  prisoner  not 
brought  to  trial  may  have  habeas  corpus,  unless  sufificient  cause 
for  detention  is  shown.  Estes  v.  Warden  City  Prison,  1 1  Week. 
Dig.  271.  The  question  of  sanity  of  person  confined  in  an  insane 
asylum  may  be  thus  tried.  Matter  of  Dixon,  11  Abb.  N.  C.  118. 
But  this  question  should  not  be  tried  in  this  manner  where  there 
are  pending  proceedings  before  a  jury.  Matter  of  Laurent,  11 
Abb.  N.  C.  120.  Questions  of  fact  cannot  be  retried.  Matter  of 
Wright,  29  Hun,  357;  Matter  of  Moses,  13  Abb.  N.  C.  189^ 
Matter  of  Francesca,  66  How.  Pr.  178.  A  person  confined  under 
a  commitment  void  on  its  face  may  have  the  writ.  People  ex 
rel.  Knowlton  v.  Sadler,  2  N.  Y.  Cr.  438.  If  on  proper  facts 
court  has  jurisdiction,  matters  of  fact  cannot  be  reviewed  on 
habeas  eorpiis.  People  ex  rel.  Martin  v.  Walters,  15  Abb.  N.  C. 
461  ;  People  ex  rel.  Peterson  v.  Sisters  of  St  Doniinick,  34  Hun^ 
463  ;  People  v.  Walters,  7  Civ.  Pro.  406. 

The  commitment  of  a  female  to  a  reformatory  institution,  by 
a  police  justice,  in  proceedings  under  the  Laws  of  1882,  ch.  410, 
§  1466,  as  amended  by  Laws  of  1886,  ch.  353,  is  conclusive  and 
cannot  be  reviewed  upon  habeas  corpus.  Peo.  ex  rel.  Kuhn 
V.  P.  E.  House  of  Mercy,  133  N.  Y.  210. 

Section  2016,  which  provides  that  ope  detained  by  virtue  of 
an  execution  or  other  process,  issued  upon  a  judgment,  decree,  or 
final  order,  shall  not  be  entitled  to  a  writ  of  habeas  corpus,  refers 
to  a  valid  and  authorized  execution,  and  therefore  if  the  execu- 
tion be  without  authority,  although  the  judgment  upon  which 
it  issued  was  good,  the  person  arrested  thereon  may  be  released 
by  habeas  corpus.  Winnie  v.  Houghtaling,  84  Hun,  169.  Where^ 
on  a  return  to  the  writ  of  habeas  corpus,  it  appears  that  if  the 
prisoner  is  detained  by  virtue  of  a  final  judgment,  and  is  under 


WRIT  OF  HABEAS  CORPUS.  6/ 


Art.   I.     When  Habeas  Corpus  Granted. 


the  exceptions  of  §  2016,  the  judge  must  remand  him  to  custody. 
People  ex  rel.  McLaughlin  v.  Wilson,  88  Hun,  261.  The  courts 
of  special  sessions  have  power  to  suspend  sentence  indefinitely, 
and  impose  sentence  at  the  expiration  of  a  limited  time,  but  it 
seems  that  a  prisoner  may  be  discharged  in  habeas  corpus  pro- 
ceedings where  the  sentence  is  void  because  the  Recorder  was 
functus  officio.  Peo.  ex  rel.  Dnnnigan  v.  Webster,  14  Misc.  617. 
A  traverse  filed  to  a  return  in  habeas  corpus,  alleging  that  the 
relator  was  not  sworn  and  examined  before  a  police  magistrate, 
upon  her  commitment  to  a  House  of  Mercy,  is  demurrable  if  it 
does  not  dispute  the  jurisdiction  of  the  magistrate,  nor  allege 
facts  showing  a  want  of  jurisdiction.  Peo.  ex  rel.  Lazarus  v. 
House  of  Mercy,  23  App.  Div.  383. 

It  has  been  said  that  the  writ  may  issue  even  where  the  deten- 
tion is  by  alleged  authority  of  the  United  States.  People  ex  rel. 
v.  Gaul,  44  Barb.  98;  Matter  of  Sullivan,  i  N.  Y.  Leg.  Obs.  314; 
see  Matter  of  Barrett,  42  Barb.  479;  s.  C.  25  How.  380.  But 
under  it,  soldiers  enlisted  by  the  United  States  cannot  be  dis- 
charged. Matter  of  O'Comior,  48  Barb.  258;  Reillys  Case,  2 
Abb.  (N.  S.)  334;  Matter  of  Ferguson,  9  Johns.  239.  The  rule 
as  laid  down  in  Tarbles  Case,  13  Wall.  397,  is  that  after  a  State 
judge  issuing  the  writ  is  fully  apprised  by  the  return  of  the 
officer  that  the  person  is  in  custody  of  the  United  States,  he  can 
proceed  no  further ;  and  this  seems  to  be  the  now  settled  practice. 

Error  in  the  trial  or  judgment  cannot  be  shown  ;  expiration  of 
term,  reversal,  or  pardon  may  be.  People  v.  Cavanagh,  2  Abb. 
84;  Bennac  v.  People,  4  Barb.  31  ;  People  v.  Cassells,  5  Hill,  164. 
Nor  can  the  regularity  of  the  proceedings,  nor  the  sufficiency  of 
evidence,  or  accuracy  of  decisions,  not  afTecting  jurisdiction,  be 
brought  up  on  habeas  corpus.  Baker  s  Case,  11  How.  418  ;  People 
v.  McCormick,  4  Park.  Cr.  9.  Nor  the  legality  of  a  judgment, 
where  the  court  had  jurisdiction  or  power  to  render  it.  People 
V.  Fullerton,  10  Hun,  6^.  The  only  question  is  as  to  the  jurisdic- 
tion to  try  the  relator  and  make  the  commitment.  People  v. 
Neilson,  16  id.  214.  The  merits  cannot  be  reviewed.  Peoples. 
Shea,  3  Park.  Cr.  562  ;  People  v.  Keeper  of  Penitentiary,  37  How. 
494;  Case  of  Twelve  Commitments,  19  Abb.  394.  The  writ  can- 
not be  used  to  try  the  title  to  any  office.  Matter  of  Wakker,  3 
Barb.  162.  The  writ  will  issue  when  a  prisoner  is  confined  for 
contempt,  leaving  the  question   as  to  whether  it  is  a  criminal 


68  WRIT   OF   HABEAS   CORPUS. 

Art.   I.     When  Habeas  Corpus  Granted. 

contempt  to  be  determined  on  the  hearing.  This  rule  was 
adopted  to  settle  questions  arising  from  the  decisions  in  IVat- 
son's  Case,  3  Lans.  408  ;  People  ex  rel.  v.  Cowles,  3  Abb.  Ct.  App. 
Dec.  507,  4  Keyes,  38  ;  People  ex  rel.  v.  Hackley,  24  N.  Y.  74. 
Where  a  sentence  is  void,  a  person  may  be  discharged  notwith- 
standing the  apparent  exception  by  §  2016,  since  the  Constitution 
gives  the  remedy  by  habeas  eorpiis  in  cases  of  illegal  detention 
and  the  legislature  cannot  narrow  its  scope.  People  ex  rel.  Diin- 
nigan  v.  Webster,  14  Misc.  617,  citing  Tiveed  Case,  60  N.  Y.  559. 
A  person  arrested  under  a  judgment  obtained  without  jurisdic- 
tion or  under  a  process  not  authorized  by  the  judgment  or  by 
statute,  may  be  released  by  a  writ  of  habeas  corpus.  Section 
2016,  which  provides  that  a  person  detained  by  virtue  of  an  exe- 
cution or  other  process  issued  upon  a  judgment  shall  not  be 
entitled  to  the  writ  of  habeas  corpus,  refers  to  a  valid  and 
authorized  and  not  to  a  void  execution.  Winne  v.  Hotaling,  84 
Hun,  166,  32  Supp.  450,  65  St.  Rep.  736. 

A  commitment  properly  issued  has,  in  habeas  corpus  cases,  all 
the  force  and  effect  given  to  a  final  judgment  of  a  court  of  com- 
petent jurisdiction  under  the  provisions  of  §  2016.  People  ex  rel. 
Kuhn  V.  P.  E.  House  of  Mercy,  133  N.  Y.  207,  44  St.  Rep.  Gyy. 

Where  a  relator  is  committed  to  prison  in  a  proceeding  not 
authorized  by  law,  the  court  or  judge  before  whom  the  prisoner 
is  brought  under  a  writ  of  habeas  corpus  must  make  a  final  order 
discharging  him  from  imprisonment.  People  ex  rel.  Fries  v. 
Riley,  25  Hun,  587. 

Where  no  legal  foundation  is  present  upon  which  a  person 
could  be  adjudged  to  be  in  contempt  and  directed  to  be  impris- 
oned for  refusal  to  pay  a  sum  of  money,  the  decision  is  held 
unauthorized  and  beyond  the  jurisdiction  of  the  court  and  habeas 
corpus  will  lie.  /;/  re  Hess,  i  Supp.  813,  48  Hun,  590,  16  St.  Rep. 
255.  The  test  of  a  prisoner's  right  to  relief  by  habeas  corpus  is  not 
whether  the  court  or  magistrate  had  jurisdiction  of  the  subject- 
matter  for  which  the  judgment  was  rendered  and  of  the  person 
of  the  party  against  whom  it  was  rendered,  but  whether  the 
tribunal  was  competent  by  reason  of  its  civil  or  criminal  jurisdic- 
tion to  render  the  judgment  by  virtue  of  which  the  imijrison- 
ment  is  inflicted.  People  ex  rel.  Mar/i/iv.  Walters,  15  Abb.  N.  C. 
461.  Habeas  corpus  will  lie  where  there  was  no  power  in  the  court 
to  render  the  judgment  which  was  pronounced,  and  where  the 


WRIT    OF    HABEAS    CORPUS.  69 

Art.   I.     When  Habeas  Corpus  Granted. 

certificate  of  conviction,  by  virtue  of  which  one  was  imprisoned^ 
is  no  warrant  for  his  detention.  People  ex  rel.  Johnson  v.  Web- 
ster^ 92  Hun,  378.  Every  officer  having  power  to  grant  a  writ 
of  habeas  corpus  has  and  may  exercise  in  the  forms  prescribed  by 
law  all  the  powers  exercised  at  common  law  by  the  King's  Bench 
in  England  and  the  Supreme  Court  of  this  State,  and  it  has  always 
been  held  that  upon  habeas  corpus  \.\\&  judge  might  go  beyond  the 
warrant  and  return  of  a  committing  magistrate  in  an  inquiry  as 
to  the  validity  of  the  process.  People  ex  rel.  Pickard  v.  Sheriff,  1 1 
Civ.  Pro.  173,  c\\\\\^  People  ex  rel.  Tweed  v.  Liscouib,  60  N.  Y.  567. 

Upon  habeas  corpus  the  court  cannot  inquire  into  the  legality 
or  justice  of  a  delinquency  court  organized  under  the  Military 
Code  for  an  error  in  the  exercise  of  its  jurisdiction.  The  remedy 
is  by  certiorari  or  appeal,  and  where  neither  the  petition  nor 
answer  to  the  return  denied  the  existence  or  the  organization  of 
the  court,  although  it  was  one  of  limited  jurisdiction,  its  juris- 
diction cannot  be  attacked.  People  ex  rel.  Patterson  v.  Reed,  64 
Hun,  453,  46  St.  Rep.  597,  19  Supp.  878.  The  Supreme  Court 
has  no  power  to  stay  proceedings  upon  a  final  order  discharging 
a  prisoner  in  habeas  corpus  proceedings  pending  an  appeal  from 
such  order.  People  ex  rel.  Young  v.  Stout,  10  Misc.  247,  63  St. 
Rep.  863,  31  Supp.  421.  A  court  or  judge  upon  the  return  of  a 
writ  of  habeas  corpus  may  not  inquire  into  the  legality  or  jus- 
tice of  any  mandate,  judgment,  decree,  or  final  order.  People 
ex  rel.  Gunn  v.  Webster,  75  Hun,  278,  58  St.  Rep.  225. 

The  provision  of  §  2034,  that  a  court  or  judge  shall  not  upon 
the  return  of  a  writ  inquire  into  the  legality  or  justice  of  any 
mandate,  judgment,  decree,  or  final  order,  applies  only  to  courts 
of  record.  People  ex  rel.  Laird  v.  HannaJi,  92  Hun,  376.  A 
commitment  for  breach  of  the  peace  in  threatening  to  commit  a 
crime  which  does  not  state  that  an  undertaking  was  required  by 
the  magistrate,  and  that  it  was  not  given,  and  which  does  not 
specify  the  amount  of  bail,  is  void,  and  furnishes  no  authority  to 
the  sheriff  to  detain  such  person.  People  ex  rel.  Day  v.  ReesCy 
24  Misc.  528,  53  Supp.  965,  87  St.  R.  965. 

Sub.  3.  When  Writ  Granted  to  Determine  Custody  of  Child. 
Dom.   Rel,  Law,  §g  40,  41. 

§  40.    Habeas  corpus  for  child  detained  by  parents. 

A  husband  or  wife,  being  an  inhabitant  of  this  State,  living  in  a  state  of  separa- 


70 


WRIT   OF   HABEAS   CORPUS. 


Art.   I.     When  Habeas  Corpus  Granted. 


tion,  without  being  divorced,  who  has  a  minor  child,  may  apply  to  the  Supreme  Court 
for  a  writ  of  habeas  corpus  to  have  such  minor  child  brought  before  such  court;  and 
on  the  return  thereof,  the  court,  on  due  consideration,  may  award  the  charge  and 
custody  of  such  child  to  either  parent  for  such  time,  under  such  regulations  and  re- 
strictions, and  with  such  provisions  and  directions,  as  the  case  may  require,  and  may 
at  any  time  thereafter  vacate  or  modify  such  order. 

41.  Habeas  corpus  for  child  detained  by  Shakers. 

If  it  shall  appear  on  such  application  or  the  return  of  the  writ,  that  the  husband  or 
wife  of  the  applicant  has  become  attached  to  the  society  of  Shakers,  and  detains  a 
child  of  the  marriage  among  them,  and  that  such  child  is  secreted  or  concealed  among 
them,  the  court  may  issue  a  warrant  in  aid  of  such  writ  of  habeas  corpus,  directed  to 
the  sheriff  of  the  county  where  the  child  is  suspected  to  be,  commanding  such  sheriff, 
in  the  daytime,  to  search  the  dvvelUng-houses  and  other  buildings  of  such  society,  or 
of  any  members  thereof,  or  any  other  building  specified  in  the  warrant,  for  such  child, 
and  to  bring  him  before  the  court,  and  the  sheriff  must  forthwith  execute  such  warrant. 

It  is  laid  down  by  Hurd,  in  his  treatise  on  Habeas  Corpus,  that 
in  exercising  the  jurisdiction  in  habeas  corpus  the  following  prin- 
ciples deduced  from  the  cases  are  of  general  application. 

"  First.  The  court  is  in  no  case  bound  to  deliver  the  child  into  the  custody  of  any 
claimant,  or  of  any  other  person,  but  may  leave  it  in  such  custody  as  the  welfare  of 
the  child  at  the  time  appears  to  require. 

"  Second.  In  controversies  between  parents  for  the  custody  of  their  legitimate  chil- 
dren, the  right  of  the  father  is  held  to  be  paramount  to  that  of  the  mother;  but  the 
welfare  of  the  child,  and  not  the  technical  legal  right,  is  the  criterion  by  which  to  de- 
termme  to  whom  the  custody  of  the  child  shall  be  awarded. 

"  Third.  In  controversies  between  parents  for  the  custody  of  their  illegitimate  chil- 
dren, the  right  of  the  mother  is  paramount ;  but  as  in  the  last  case,  the  welfare  of  the 
child  and  not  the  technical  legal  right  determines  the  custody. 

''Fourth.  In  all  cases,  if  the  child  has  arrived  at  the  age  of  discretion,  it  will  be 
permitted  to  elect  in  whose  custody  it  will  remain,  provided  its  choice  under  the  cir- 
cumstances does  not,  in  the  opinion  of  the  court,  lead  to  an  improper  custody." 

In  proceeding  by  habeas  corpus  under  §  2015  to  determine 
the  right  to  the  custody  of  an  infant,  the  court  is  bound  to  respect 
the  rights  of  the  parent  or  guardian,  and  these  may  not  be  over- 
thrown by  the  mere  wishes  of  the  child.  The  jurisdiction,  how- 
ever, of  the  court  is  equitable  in  its  character,  the  welfare  of  the 
child  is  the  chief  object  to  be  attained,  and  must  be  the  guide 
for  the  judgment  of  the  court.  It  is  competent,  therefore,  for  the 
court,  while  recognizing  the  legal  rights  of  a  guardian  to  make  a 
temporary  disposition  of  the  child,  by  delivering  it  to  other 
control  or  custody,  when,  in  the  exercise  of  its  discretion,  it  de- 
termines this  to  be  for  the  best  interests  of  the  child.  People  ex 
rel.  Pruyne  v.  Walts,  122  N.  Y.  238,  33  St.  Rep.  231. 

A  proceeding  by  habeas  corpus  to  determine  the  right  to  the 


WRIT   OF   HABEAS   CORPUS.  7I 


Art.  I.     When  Habeas  Corpus  Granted. 


custody  of  the  child  is  a  proceeding  at  common  law  and  does  not 
call  for  the  exercise  of  the  equitable  powers  of  the  court.  It  is 
summary  in  its  nature,  and  denials  of  the  allegations  of  the  return 
made  to  the  writ  may  be  made  in  an  informal  manner  by  af- 
fidavits or  even  orally.  People  ex  rel.  Keator  v.  Moss,  6  App. 
Div.  414. 

On  habeas  corpus  by  the  grandfather  of  a  child  2>^  years  old,  it 
appeared  the  child's  mother  had  died  at  the  house  of  petitioner, 
but  the  child  remained  there  about  i>^  years,  when  the  father 
obtained  possession  of  her  and  immediately  placed  her  in  an 
asylum  for  destitute  children  ;  that  the  father  had  not  married 
again  and  had  no  home  to  which  he  could  take  his  daughter  and 
no  person  who  could  take  care  of  her  ;  that  petitioner  was  able 
to  give  the  child  such  care  as  one  of  her  years  should  have ;  held, 
the  custody  should  be  awarded  to  the  petitioner.  In  re  Riemantty 
10  Supp.  516,  31  St.  Rep.  13. 

The  common-law  writ  of  habeas  corpus  was  a  writ  in  behalf  of 
liberty,  and  its  purpose  was  to  deliver  a  prisoner  from  unjust 
imprisonment  and  illegal  and  improper  restraint.  It  was  not  a 
proceeding  calculated  to  try  the  right  of  parents  and  guardians  to 
the  custody  of  infant  children.  It  was  a  frequent  use,  however, 
when  children  were  detained  from  their  parents  and  guardians 
on  the  ground  that  absence  from  legal  custody  was  equivalent  to 
illegal  restraint  and  imprisonment.  In  the  case  of  children  of  the 
age  of  discretion  the  object  of  tiie  writ  was  usually  accomplished 
by  allowing  the  party  restrained  the  exercise  of  his  volition,  but 
in  the  case  of  an  infant  of  an  age  to  be  incapable  of  determining 
what  was  best  for  itself  the  court  or  ofificer  made  the  determina- 
tion for  it,  and,  in  so  doing,  the  child's  welfare  was  the  chief  end 
in  view.  Rex  v.  Delavcl,  3  Burr,  1435  ;  In  re  Waldron,  13  Johns. 
418  ;  People  ex  rel.  Barry  v.  Mcrcein,  8  Paige,  47,  25  Wend  73  ; 
People  ex  rel.  IVilcox  v.  Wilcox,  14  N.  Y.  575  ;  People  ex  rel.  Whele 
v.  Weisenbach,  60  N.  Y.  385  ;  Hurd  on  Habeas  Corpus,  chap.  9. 
The  purpose  of  the  writ  as  now  regulated  by  the  Code  is  the 
same.     Code  Civ.  Pro.  201 5-2031. 

On  a  petition  by  the  father  for  a  writ  to  obtain  the  custody  of 
his  minor  child  from  her  grandmother,  it  appeared  respondent 
had  reared  the  child  from  infancy  in  a  home  of  wealth  and  re- 
finement, and  that  the  child,  about  seven  years  of  age,  was 
devoted  to   her  grandmother  and   desired   to  remain  with  her ; 


72 


WRIT   OF   HABEAS   CORPUS. 


Art.   I.     When  Habeas  Corpus  Granted. 


petitioner  had  no  means  and  no  home,  and  intended  to  have  the 
child  live  with  his  father  and  stepmother  ;  he  had  failed  to  sup- 
port his  wife  during  her  life  and  did  not  attempt  to  get  the  custody 
of  the  child  until  after  her  death,  held,  that  the  interests  of  the 
child  required  she  should  be  left  with  the  respondent.  Paddock 
V.  Egar,  57  Hun,  591,  10  Supp.  710,  affirmed,  128  N.  Y.  616. 

On  a  writ  for  the  custody  of  a  child  six  years  old,  where 
neither  party  had  any  legal  claim  to  such  custody,  but  the  child 
had  lived  with  respondents  since  it  was  one  year  old  and  they 
were  much  attached  to  her  and  she  to  them,  and  her  mother 
before  her  death  had  expressed  the  wish  defendant  should  have 
the  child,  the  petitioners  being  the  aunt  and  uncle  having  several 
children  of  their  own  and  living  in  another  State,  it  was  held  that 
the  child  should  remain  with  respondents.  In  re  Lundcrgan,  8 
Supp.  924,  30  St.  Rep.  382.  The  provisions  of  the  Revised 
Statutes  (2  R.  S.  148,  §§  i  and  2),  which  provide  that  where 
the  parents  have  separated,  the  mother  may  have  habeas  corpus 
for  minor  children  and  that  the  court  may  award  her  custody  of 
them,  are  only  permissive  and  do  not  give  an  absolute  right  to 
either  parent.  Matter  of  Reynolds,  8  Supp.  172,  28  St.  Rep.  538. 
A  child  will  not  be  taken  from  the  custody  of  its  father  and 
given  to  its  mother  where  it  does  not  appear  that  its  welfare 
requires  the  change.  Day  v.  Day,  4  Misc.  235,  24  Supp.  873. 
In  People  v.  Trafford,  12  Supp.  43,  the  rule  was  reiterated  that 
the  welfare  of  the  children  is  the  controlling  consideration,  and 
in  that  case  her  custody  was  awarded  to  her  grandparents  in  a 
case  where  the  husband  and  wife  had  separated. 

\v.  People  ex  rel.  Slatzkata  v.  Baker,  3  Supp.  536,  the  provisions 
of  chapter  364,  Laws  of  1864,  to  create  a  society  for  the  protec- 
tion of  destitute  Roman  Catholic  children  and  provide  for  the 
commitment  of  such  children,  is  considered,  the  act  prescribing 
a  form  for  the  commitment.  Provisions  of  §291  of  the  Penal 
Code  relative  to  commitment  of  children  under  the  age  of  six- 
teen years  are  considered.     In  re  Diss  Debar,  3  Supp.  667. 

A  habeas  corpus  decree  of  another  State  for  the  custody 
of  a  child  is  not  conclusive  in  this  State  upon  the  interests 
of  the  child,  as  it  was  not  a  party  to  the  proceeding.  People 
v.  Dewey,  23  Misc.  267,  50  Supp.  1013,  84  St.  Rep.  1013.  It  is 
said  in  Matter  of  7rr.y^',  32  App.  Div.  46,  that  the  testimony  in 
cases  of  this   character  should   ordinarily   be   taken   before  the 


WRIT   OF   HABEAS   CORPUS.  73 

Art.  I.     When  Habeas  Corpus  Granted. 

judges  themselves  to  save  expenses  to  the  parties,  and  because 
the  judge  who  ultimately  has  to  pass  upon  the  question  of  the 
proper  custody  of  the  children  with  reference  to  their  interests 
and  welfare  can  do  so  much  more  intelligently  where  he  has 
seen  and  heard  the  witness  than  where  he  has  merely  read  the 
minutes  of  the  stenographer.  Where  a  husband  abandons  his 
wife  and  she  obtains  a  divorce  on  that  ground  which  makes  no 
provision  as  to  the  child,  the  wife  has  a  right  to  establish  a 
domicil  for  herself  and  child,  and  where  she  does  so,  the  court 
of  a  foreign  state  in  which  they  are  transiently  sojourning  has  no 
power  to  regulate  the  relations  between  them  on  habeas  corpus. 
People  V.  Dewey,  23  Misc.   267,  5oSupp.  1013,  84  St.  Rep.  1013. 

Laws  of  1884,  chapter  438,  §  12,  providing  for  an  application 
to  the  surrogate's  court  for  the  rescission  of  an  agreement  of 
adoption,  does  not  deprive  the  Supreme  Court  of  jurisdiction  to 
take  the  child  from  its  adoptive  parents  under  habeas  eorpus  on 
proper  showing.     People  \.  Paschal,  6%  \iw\\,  ^^^^    22   Supp.   881. 

Section  241  of  the  Code,  conferring  upon  a  county  judge  within 
his  county  the  power  conferred  by  law  on  an  officer  authorized 
to  perform  the  duties  of  a  justice  of  the  Supreme  Court  at 
chambers  or  out  of  court,  does  not  include  jurisdiction  of  the 
care,  custody,  and  control  of  infants.  People  ex  rel.  Williams  v. 
Corey,  46  Hun,  408,  followed  in  People  ex  rel.  Parr  v.  Parr,  49 
Hun,  473,  which  was  affirmed  121  N.  Y.  679. 

A  guardian  may  have  the  writ  to  bring  up  the  person  of  his 
ward.  Hurd  on  Habeas  Corpus,  554.  Where  there  is  an  ad- 
judication that  petitioner  is  not,  and  respondent  is,  entitled  to 
the  custody  of  an  infant,  it  is  a  bar  to  a  subsequent  habeas ; 
otherwise  if  the  petition  is  dismisssed.  Matter  of  Price,  12 
Hun,  508.  But  that  a  former  habeas  is  not  res  adjiidicata  when 
the  questions  raised  are  different,  or  even  upon  the  same  facts,  is 
held  in  People  v.  Fancher,  i  Hun,  27  ;  People  v,  Brady,  56  N.  Y. 
182.  It  is  questioned  in  People  v.  Gilniore,  26  Hun,  i,  whether  a 
person  lawfully  having  the  custody  of  a  child,  and  permitting  it 
to  be  used  contrary  to  the  provisions  of  the  act  to  prevent 
wrongs  to  children,  can  be  regarded  as  illegally  confining  or 
restraining  a  child. 

The  writ  may  be  applied  for  by  a  parent  or  guardian  to 
obtain  control  of  children.  People  v.  Mercein,  8  Paige,  47.  See 
Mercein  v.  Barry,  25  Wend.  65  ;  People  v.  Mercein,  3    Hill,  399 ; 


74  WRIT  OF  HABEAS  CORPUS. 

Art.  I.     When  Habeas  Corpus  Granted. 

Peoples.  Wilcox,  22  Barb.  178;  Wilcox  v.  Wilcox,  4  Kern.  575; 
see,  also,  People  v.  Cooper,  i  Duer,  725.  The  father  is  entitled  to 
custody  of  the  child  as  against  the  mother,  unless  circumstances 
exist  making  a  different  disposition  proper,  as  the  tender  years 
of  the  infant.  People  v.  Mercein,  8  Paige,  47  ;  People  v.  Chegaray, 
18  Wend,  637;  People  v.  Nickerson,  19  id.  16;  People  v. 
Himiphreys,  24  Barb.  521  ;  People  v.  Olvistead,  27  id.  9,  2  Kent's 
-Com.  ig^.;  People  v.  Mercein,  3  Hill,  399.  The  fact  of  parents 
living  apart  may  entitle  the  mother  to  custody  of  an  infant. 
Mercein  v.  Barry,  25  Wend.  64;  People  v.  Mercein,  8  Paige,  48. 
The  husband  may  lose  his  right  to  the  custody  by  immorality  or 
inability  to  provide  for  its  support,  or  the  court  may  assign  it  to 
another  when  it  is  manifestly  for  the  well-being  of  the  child. 
Cases  cited,  supra  ;  Matter  of  Cuncen,  17  How.  516  ;  Matter  of 
Holmes,  19  id.  329.  The  inclination  of  the  infant  may  be  con- 
sulted in  a  proper  case.  Jones  v.  Erbert,  17  Abb.  395  ;  People  v. 
Kling,  6  Barb.  366 ;  Matter  of  Waldron,  13  Johns.  418  ;  People  v. 
Wilcox,  22  Barb.  178  ;  People  v.  Pillow,  i  Sandf.  672  ;  Matter  of 
McDowles,?,  Johns.  329;  People  v.  Cooper,  8  How.  288.  The 
father  of  a  bastard  has  no  right  to  its  control  ;  its  mother  is 
entitled  to  its  custody  in  case  she  is  a  proper  person.  People  v. 
Kling,  6  Barb.  366;  Robali^ia  v.  Armstrong,  15  id.  247  ;  Matter 
of  Doyle,  Clarke's  Ch.  I'^y  \  Jones  v.  Erbert,  17  Abb.  397.  It  is 
provided  by  2  R.  S.  148,  §  i,  that  where  parents  live  separately 
the  mother  may  apply  for  the  writ  to  the  Supreme  Court. 
People  V.  Manley,  2  How.  61  ;  People  v.  Chegaray,  18  Wend.  637  ; 
People  V.  Mercien,  8  Paige,  48  ;  People  v.  Nickerson,  19  Wend.  18. 
In  such  case  the  petition  should  be  presented  to  the  court  and 
the  writ  should  be  issued  by  the  court.  A  judge  at  chambers 
cannot  issue  it.  People  ex  rel.  v.  Osborne,  6  Civ.  Pro.  299.  Any 
one  may  ordinarily  appear  and  litigate  for  the  child.  People  v. 
McLeod,  3  Hill,  654,  note.  Where  the  return  to  a  writ  of  habeas 
corpus,  procured  by  a  husband  for  the  purpose  of  obtaining  from 
his  wife  the  custody  of  their  infant  child,  alleges  that  the  child 
is  living  in  New  Jersey  and  is  not  a  resident  of  New  York,  and 
no  traverse  is  interposed  to  such  allegation,  the  mother  of  the 
child  cannot  be  adjudged  guilty  of  contempt,  for  a  failure  to 
produce  the  child  as  demanded  by  the  writ.  Peo.  ex  rel. 
Winston -v.  Winston,  31  App.  Div.  121,  52  Supp.  814,  86  St. 
Rep.  814. 


WRIT   OF   HABEAS   CORPUS.  75 

Art.  I.     When  Habeas  Corpus  Granted. 

Sub,  4.  When  Writ  Granted  in  Extradition  Cases.     Code  Crim- 
inal Procedure,  §  827,   sub.   2. 

Sub.  2.  Before  any  officer  to  whom  such  a  warrant  shall  be  directed  or  intrusted 
shall  deliver  the  person  arrested  into  the  custody  of  the  agent  or  agents  named  in  the 
warrant  of  the  Governor  of  this  State,  such  officer  must  unless  the  same  be  waived,  as 
hereinafter  stated,  take  the  prisoner  or  prisoners  before  a  judge  of  the  Supreme  Court, 
or  a  county  judge,  who  shall,  in  open  court,  if  in  session,  otherwise  at  chambers,  in- 
form the  prisoner  or  prisoners  of  the  cause  of  his  or  their  arrest,  the  nature  of  the 
process,  and  instruct  him  or  them  that  if  he  or  they  claim  not  to  be  the  particular 
person  or  persons  mentioned  in  said  requisition,  indictment,  affidavit,  or  warrant 
annexed  thereto,  or  in  the  warrant  issued  by  the  Governor  thereon,  he  or  they  may 
have  a  writ  of  habeas  corpus  upon  filing  an  affidavit  to  that  effect.  Said  person  or 
persons  so  arrested  may,  in  writing,  consent  to  waive  the  right  to  be  taken  before  said 
court  or  judge  thereof  at  chambers.  Such  consent  or  waiver  shall  be  witnessed  by 
the  officer  intrusted  with  the  execution  of  the  warrant  of  the  Governor  and  one  of  the 
judges  aforesaid  or  a  counsellor-at-law  of  this  State,  and  such  waiver  shall  be  immedi- 
ately forwarded  to  the  Governor  by  the  officer  who  executed  said  warrant.  If,  after 
a  summary  hearing  as  speedily  as  may  be  consistent  with  justice,  the  prisoner  or  pris- 
oners shall  be  found  to  be  the  person  or  persons  indicted  or  informed  against,  and 
mentioned  in  the  requisition,  the  accompanying  papers  and  the  warrant  issued  by  the 
Governor  thereon,  then  the  court  or  judge  shall  order  and  direct  the  officer  intrusted 
with  the  execution  of  said  warrant  of  the  Governor  to  deliver  the  prisoner  or  prison- 
ers into  the  custody  of  the  agent  or  agents  designated  in  the  requisition  and  the  war- 
rants issued  thereon,  as  the  agent  or  agents  upon  the  part  of  such  State  to  receive  him 
or  them,  othervvise  to  be  discharged  from  custody  by  the  court  or  judge.  If  upon 
such  hearing  the  warrant  of  the  Governor  shall  appear  to  be  defective  or  improperly 
executed,  it  shall  be  by  the  court  or  judge  returned  to  the  Governor,  together  with  a 
statement  of  the  defect  or  defects,  for  the  purpose  of  being  corrected  and  returned  to 
the  court  or  judge,  and  such  hearing  shall  be  adjourned  a  sufficient  time  for  the  pur- 
pose, and  in  such  interval  the  prisoner  or  prisoners  shall  be  held  in  custody  until  such 
hearing  be  finally  disposed  of. 

In  the  absence  of  papers  on  which  the  warrant  was  granted 
the  warrant  alone  can  be  considered,  and  recitals  in  the  warrant 
are  sufificient  to  sustain  its  validity.  A  mistake  in  the  spelling 
of  defendant's  name  is  no  ground  for  a  discharge  where  the  pro- 
nunciation remains  the  same  and  it  is  apparent  that  the  defend- 
ant was  the  person  intended.  Matter  of  Scrafford,  36  St.  Rep. 
748,  59  Hun,  323,  12  Supp.  945. 

One  in  the  custody  of  a  sheriff  by  virtue  of  a  warrant  of  ex- 
tradition issued  by  the  Governor,  directing  him  to  deliver  such 
persons  to  a  designated  agent  making  the  deposition,  is  not  a 
person  detained  in  the  common  jail  for  a  criminal  charge,  so  as 
to  authorize  the  writ  of  habeas  corpus.  It  seems  that  when  an 
officer  of  this  State,  having  authority  to  do  so,  issues  a  writ,  in 
such  case  the  warrant  of  the  Governor   is  not   conclusive,  and  it 


76  WRIT   OF   HABEAS   CORPUS. 


Art.  I.     When  Habeas  Corpus  Granted. 


is  his  duty,  upon  a  return,  to  examine  the  affidavits  presented  to 
the  Governor  and  determine  whether  any  crime  was  properly  or 
sufficiently  charged  against  the  prisoner.  People  ex  rel.  Connors 
V.  Reilly,  ii  Hun,  89.  In  People  ex  rel.  Draper  v.  Pinkerton,  yj 
N.  Y.  245,  it  was  held  that  the  recitals  in  a  warrant  of  the  Gov- 
ernor for  the  arrest  of  a  fugitive  from  justice  of  another  State 
dixc  2it  \&diSt  prima  facie  truQ.  As  to  whether  it  is  conclusive  or 
may  be  met  by  evidence  on  the  part  of  the  prisoner  showing  the 
papers  presented  to  the  Governor  were  defective,  is  questioned. 
It  was  further  held  that  a  return  to  a  writ,  setting  forth  such  a 
warrant,  which  contains  recitals  of  facts  necessary  to  confer 
authority  under  the  Constitution  and  Laws  of  the  United  States 
to  issue  it,  is  a  sufficient  justification  for  holding  the  prisoner, 
without  producing  the  papers  or  evidence  on  which  the  Governor 
acted. 

In  People  ex  rel.  Jonrdan  v.  Donahne,  84  N.  Y.  438,  it  was  held 
that  where  the  papers  upon  which  a  warrant  of  extradition  is  is- 
sued, are  withheld  by  the  Executive,  the  warrant  itself  can  only 
be  looked  to  for  the  evidence  that  the  essential  conditions  of  its 
issue  have  been  complied  with,  and  it  is  sufficient  if  it  recites 
what  the  law  requires. 

In  People  ex  rel.  Lawrence  v.  Brady,  56  N.  Y.  182,  it  is  held  that 
the  courts  have  jurisdiction  to  interfere  by  writ  of  habeas  corpus 
and  to  examine  the  grounds  upon  which  the  executive  warrant 
for  the  apprehension  of  an  alleged  fugitive  from  justice  from 
another  State  was  issued,  and  in  case  the  papers  are  defective 
and  insufficient,  to  discharge  the  prisoner.  The  rule  is  well 
settled  that  the  court  has  no  right  upon  a  question  of  extra- 
dition to  consider  the  charge  upon  its  merits  or  to  undertake  in 
anyway  whatsoever  to  determine  whether  it  is  well  founded  or 
not.  Matter  of  Clark,  9  Wend.  212,  cited.  People  ex  rel.  Ryan  v. 
Conlin,  15  Misc.  303,36  Supp.  888,72  St.  Rep.  no.  In  the 
latter  case  Justice  Beekman  lays  down  the  law  applicable  to  such 
cases  as  follows:  "  i.  Where  the  papers  upon  which  the  Gov- 
ernor acted  in  issuing  his  warrant  are  before  the  court,  it  must 
appear  therefrom  that  the  prisoner  is  duly  charged  with  the  com- 
mission of  a  crime  in  the  demanding  State.  2.  It  must  also 
appear  upon  the  face  of  the  papers,  either  by  affirmative  allega- 
tion or  by  necessary  inference  from  the  nature  of  the  offence 
charged,  that   the  prisoner  was  in   the  demanding  State  at    the 


WRIT    OF    HABEAS    CORPUS.  7/ 

Art.   2.     What  Court  ma}'  Grant  Writ  and  Application  therefor. 

time  when  the  offence  charged  against  him  was  committed,  for 
it  is  under  such  circumstances  only  that  he  can  be  held  to  be  a 
fugitive  from  justice.  3.  The  prisoner  must  also  be  identified 
as  the  person  against  whom  the  charge  was  made,  and  for  whose 
arrest  the  warrant  of  the  Governor  has  been  issued."  See,  also, 
People  ex  rel.  McCoy  v.  Wardeyi  of  City  Prison,  3  N.  Y.  C.  R.  370. 


ARTICLE  II. 

What  Court  may  Grant  Writ  and  Application  therefor. 
§§  2017,  2018,  2019,  2021,  2023. 

§2017.  [Am'd,  1895.]  How  and  to  whom  application  for  habeas 
corpus  or  certiorari  made. 

Application  for  the  writ  must  be  made,  by  a  written  petition,  signed,  either  by  the 
person  for  whose  relief  it  is  intended,  or  by  some  person  in  his  behalf,  to  either  of 
the  following  courts  or  officers  : 

1.  The  Supreme  Court,  at  a  Special  Term  or  the  appellate  division  thereof,  where 
the  prisoner  is  detained  within  the  judicial  district  within  which  the  term  is  held. 

2.  A  justice  of  the  Supreme  Court,  in  any  part  of  the  State. 

3.  An  officer  authorized  to  perform  the  duties  of  a  justice  of  the  Supreme  Court  at 
chambers,  being  or  residing  within  the  county,  where  the  prisoner  is  detained;  or,  if 
there  is  no  such  officer  within  that  city  or  county,  capable  of  acting,  or,  if  all  those 
who  are  capable  of  acting  and  authorized  to  grant  the  writ,  are  absent,  or  have 
refused  to  grant  it,  then  to  an  officer,  authorized  to  perform  those  duties,  residing  in 
an  adjoining  county. 

L.  1895,  ch.  946. 

§  2018.  Application  in  another  county;  proof  required. 

Where  application  for  either  writ  is  made  as  prescribed  in  subdivision  third  of  the 
last  section,  without  the  county  where  the  prisoner  is  detained,  the  officer  must  re- 
quire proof,  by  the  oath  of  the  person  applying,  or  by  other  sufficient  evidence,  of  the 
facts  which  authorize  him  to  act  as  therein  prescribed;  and  if  a  judge  in  that  county, 
authorized  to  grant  the  writ,  is  said  to  be  incapable  of  acting,  the  cause  of  the  inca- 
pacity must  be  specially  set  forth.  If  such  proof  is  not  produced,  the  application  must 
be  denied. 

Id.  8  24,  am'd. 

§  2019.  Contents  of  petition. 

The  petition  must  be  verified  by  the  oath  of  the  petitioner,  to  the  effect  that  he 
believes  it  to  be  true ;  and  must  state,  in  substance  : 

1.  That  the  person  in  whose  behalf  the  writ  is  applied  for,  is  imprisoned,  or 
restrained  in  his  liberty;  the  place  where,  unless  it  is  unknown,  and  the  officer  or 
person  by  whom  he  is  so  imprisoned  or  restrained,  naming  both  parties,  if  their 
names  are  known,  and  describing  either  party,  whose  name  is  unknown. 

2.  That  he  has  not  been  committed,  and  is  not  detained  by  virtue  of  any  judgment, 
decree,  final  order,  or  process,  specified  in  §  2016  of  this  act. 


78  WRIT   OF   HABEAS   CORPUS. 


Art.  2.     What  Court  may  Grant  Writ  and  Application  therefor. 


3.  The  cause  or  pretence  of  the  imprisonment  or  restraint,  according  to  the  best 
knowledge  and  belief  of  the  petitioner. 

4.  If  the  imprisonment  or  restraint  is  by  virtue  of  a  mandate,  a  copy  thereof  must 
be  annexed  to  the  petition  ;  unless  the  petitioner  avers,  either,  that  by  reason  of  the 
removal  or  concealment  of  the  prisoner  before  the  application,  a  demand  of  such  a 
copy  could  not  be  made,  or  that  such  a  demand  was  made,  and  the  legal  fees  for  the 
copy  were  tendered  to  the  officer  or  other  person  having  the  prisoner  in  his  custody, 
and  that  the  copy  was  refused. 

5.  If  the  imprisonment  is  alleged  to  be  illegal,  the  petition  must  state  in  what  the 
alleged  illegality  consists. 

6.  It  must  specify  whether  the  petitioner  applies  for  the  writ  of  habeas  corpus,  or 
for  the  writ  of  certiorari. 

2R.  S.  563,§25. 

§  2021.    [Am'd.  1895.]    Form  of  writ  of  habeas  corpus. 

The  writ  of  habeas  corpus,  issued  as  prescribed  in  this  article,  must  be  substantially 
in  the  following  form,  the  blanks  being  properly  filled  up  : 
"The  People  of  the  State  of  New  York, 

To  the  Sheriff  of,"   etc.  (or  "  to  A.  B.") 

"We  command  you,  that  you  have  the  body  of  C.  D.,  by  you  imprisoned  and 
detained,  as  it  is  said,  together  with   the   time  and  cause  of  such  imprisonment  and 

detention,  by  whatsoever  name  the  said  C.  D.  is  called  or  charged,  before " 

("  the  Supreme  Court,  at  a  Special  Term  or  term  of  the  appellate  division  thereof,  to 
be  held",  or  "E.  F.,  justice  of  the  Supreme  Court",  or  otherwise,  as  the  case  may 

|jg\  «  at on "  [or  "  immediately  after  the  receipt  of  this  writ  ",]  "  to 

do  and  receive  what  shall  then  and  there  be  considered,  concerning   the  said  C.  D. 
And  have  you  then  there  this  writ. 

"Witness, ,  one  of  the  justices"   (or  "judges")  "of  the  said  court", 

(or    "county  judge",    or   otherwise,   as    the   case   may  be,)  "the day 

Qf ,  in  the  year  eighteen  hundred  and ". 

§  2023.    When  writ  returnable  before  another  judge. 

If  application  for  either  writ  is  made  to  the  Supreme  Court,  or  to  a  justice  thereof 
in  a  county  other  than  that  where  the  person  is  imprisoned  or  confined,  the  writ  may 
be  made  returnable,  in  its  or  his  discretion,  before  any  judge  authorized  to  grant  it, 
in  the  county  of  the  imprisonment  or  confinement. 

It  is  said  that  the  power  conferred  on  judges  out  of  court,  and 
judicial  officers  authorized  to  perform  the  duties  of  a  judge,  is 
obvious,  and  in  this  respect  this  writ  differs  from  the  writ  of 
mandamus.  Pco.  ex  rel.  Lower  v.  Doiiova?i,  29  Abb.  N.  C. 
127,   135  N.  Y.  81. 

A  petition  by  a  wife  living  separate  from  her  husband  for  a 
habeas  corpus  for  the  purpose  of  removing  her  minor  child  from 
the  custody  to  which  it  had  been  committed  by  its  father  and  to 
have  it  committed  to  her,  should  be  presented  to  the  court,  and 
the  writ  should  be   issued  by  the  court.     A  judge   of  chambers 


WRIT   OF   HABEAS   CORPUS.  79 

Art.  2.     What  Court  may  Grant  Writ  and  Application  therefor. 

cannot  issue  it.  The  Revised  Statutes  gave  the  Supreme  Court 
the  right  to  issue  the  writ  at  the  instance  of  a  wife  living  separate 
from  her  husband,  and  thereupon  to  determine  as  to  the  custody 
of  an  infant  child  (2  R.  S.  §  12).  The  chancellor  also,  in- 
dependent of  the  statute,  might  by  habeas  corpus  cause  an  infant 
child  to  be  brought  before  him  and  determine  as  to  its  custody, 
but  since  the  repeal  by  chapter  417  of  the  Laws  of  1877  ^Y  sub- 
division 21,  §  16,  of  the  Judiciary  Act  of  1847,  justices  of 
the  Supreme  Court,  when  not  sitting  as  a  court,  have  no  power 
in  such  a  proceeding.  People  ex  rel.  Hoyle  v.  Osbor>i,  6  Civ. 
Pro.  299. 

Failure  to  state  in  a  petition  for  a  habeas  corpus,  that  the  per- 
son in  whose  behalf  the  writ  is  applied  for  is  not  detained  by 
virtue  of  a  final  order  of  a  competent  tribunal,  made  in  a  special 
proceeding,  or  of  an  execution  or  transcript  issued  on  such  order^ 
is  a  fatal  defect.     People  ex  rel.  Hoyle  v.  Osborn,  6  Civ.  Pro.  299. 

Under  §  99,  chapter  686,  Laws  of  1892,  a  person  imprisoned 
for  contempt  of  the  Court  of  Oyer  and  Terminer  cannot  be 
removed  on  habeas  corpus  returnable  before  a  justice  of  the 
Supreme  Court,  though  the  Oyer  and  Terminer  has  taken  a  recess 
for  several  days.     Matter  of  Taylor,  60  St.  Rep.  136. 

The  petition  must  show  the  place  of  the  detention  of  the  pris- 
oner or  it  is  defective.  It  should  also  negative  the  fact  of  the 
detention  by  virtue  of  a  judgment  or  decree.  People  v.  Cowles^ 
59  How.  287. 

Precedent  for  Petition  by  Prisoner.     (38  Hun,  280.) 
To  Hon.  William  S.  Kenyon,  County  Judge  of  Ulster  County  : 

The  petition  of  Richard  Stokes  respectfully  shows,  that  he  is  now  a 
prisoner  confined  in  the  custody  of  George  Young,  sheriff  of  Ulster 
County,  at  the  county  jail  in  said  county,  for  supposed  criminal  offence. 

Your  petitioner  further  shows,  that  such  confinement  is  by  virtue  of  a 
commitment  made  by  one  F.  D.  L.  Montanye,  a  justice  of  the  peace  of 
the  town  of  Marbletown,  a  copy  of  which  is  hereto  annexed,  and  to 
which  reference  is  made  for  the  grounds  thereof. 

And  your  petitioner  further  shows  that,  to  his  best  knowledge  and 
belief,  he  is  not  committed  or  detained  by  virtue  of  any  process  issued 
by  any  court  of  the  United  States  or  any  judge  thereof,  or  by  virtue  of 
the  final  judgment  or  decree  of  any  competent  tribunal  of  civil  or  crim- 
inal jurisdiction,  or  final  order  of  such  court,  or  by  virtue  of  any  execu- 
tion upon  such  judgment  or  decree. 

Your  petitioner  further  shows,  that  he  is  advised  by  his  counsel,  John 
F.  Cloonan,  of  Kingston,  N.  Y.,   and  verily  believes  that  his  imprison- 


8o  WRIT   OF   HABEAS   CORPUS. 

Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 

ment  is  illegal,  and  that  such  illegality  consists  in  this  :  That  the  com- 
mitment of  said  magistrate  commits  him  to  the  county  jail  for  the  period 
of  one  year  in  default  of  payment  of  the  tine  of  $250  thereby  imposed, 
and  that  it  is  void  under  §  718  of  the  Code  of  Criminal  Procedure. 

Wherefore  your  petitioner  prays  a  writ  of  /ujbeas  corpus  to  the  end 
that  he  may  be  bailed  or  discharged  from  custody. 

Dated  April  31,   1887.  RICHARD  STOKES. 

JOHN  F.  CLOONAN, 

Attorney  for  Petitioner. 

Precedent  for  Petition  :— Under   Void  Commitment  for  Con- 
tempt.    (143  N.  Y.  219.) 

To  the  Hon.  Walter  Lloyd  Smith,  one  of  the  Justices  (f  the  Supreme  Court 
of  the  State  of  Netu  York  : 

This  petition  of  Frederick  L.  Taylor  respectfully  shows  : 

That  he  is  of  the  age  of  20  years  and  resides  in  Plainfield,  N.  J.,  but 
he  is  at  present  a  student  in  Cornell  University,  situate  in  the  city  of 
Ithaca,  N.  Y. 

That  he  is  now  a  prisoner  confined  in  the  custody  of  Charles  S. 
Seaman,  the  sheriff  of  the  county  of  Tompkins,  in  the  State  of  New 
York,  and  has  been  imprisoned  in  said  jail  since  March  2 2d,  1894. 

And  your  petitioner  further  alleges  to  the  best  of  his  knowledge  and 
belief  that  he  is  not  detained  by  virtue  of  any  mandate  issued  by  a 
court  or  judge  of  the  United  States  in  a  case  where  such  courts  or 
judges  have  exclusive  jurisdiction  by  the  commencement  of  legal  pro- 
ceedings in  such  a  court ;  nor  by  virtue  of  a  final  judgment  or  decree 
of  any  competent  tribunal  of  civil  or  criminal  jurisdiction  by  a  final 
order  of  such  a  tribunal  made  in  said  proceedings  instituted  for  any 
cause ;  nor  by  virtue  of  an  execution  or  other  process  issued  on  such  a 
judgment,  decree,  or  final  order  other  than  as  stated  hereinafter,  wherein 
the  reasons  for  your  petitioner's  imprisonment  are  set  forth. 

That  the  cause  or  pretence  of  your  petitioner's  imprisonment  accord- 
ing to  the  best  knowledge  and  belief  of  your  petitioner  is  as  follows  : 

That  he  was  subpoenaed  to  appear  as  a  witness  before  the  grand  jury 
now  in  session  in  the  county  of  Tompkins  to  give  evidence  in  an  inquiry 
here  pending  to  determine  how  and  by  what  means  and  through  whom 
one  Henrietta  Jackson  came  to  her  death  in  the  city  of  Ithaca,  N.  ¥.,  on 
the  night  of  the  20th  day  of  February,  1894. 

That  deponent  was  sworn  as  a  witness  before  said  grand  jur}^  and 
examined  at  great  length  and  for  a  considerable  time,  and  answered  such 
questions  as  were  asked  of  him  until  he  was  asked  to  answer  certain 
questions  the  answers  to  which  might  tend  to  criminate  him  and  connect 
him  with  the  commission  of  said  alleged  crime,  and  which  questions  he 
refused  to  answer,  giving  as  his  reasons  therefor  to  said  grand  jury  that 
he  refused  and  declined  to  answer  said  questions  on  the  ground  that  his 
answers  might  tend  to  criminate  him,  and  that  he  desired  to  put  himself 
upon  the  privilege  which  the  Constitution  and  the  law  of  the  State  of 


WRIT   OF   HABEAS   CORPUS.  8 1 


Art.  2.     What  Court  may  Grant  Writ  and  Application  therefor. 


New  York  gave  him,  and  before  said  grand  jury  he  claimed  said  privi- 
lege personal  to  himself,  whereupon  he  was  adjudged  guilty  of  contempt 
by  the  court  in  the  court-house  in  the  city  of  Ithaca,  N.  Y.,  on  the  2 2d 
day  of  March,  1894,  at  which  court  the  Hon.  Gerrit  A.  Forbes,  one  of 
the  justices  of  the  Supreme  Court,  was  presiding,  and  a  commitment 
was  issued  to  the  sheriff  of  the  county  of  Tompkins  against  your  peti- 
tioner, and  by  virtue  of  said  commitment  confined  in  the  common  jail 
of  the  county  of  Tompkins  in  the  keeping  of  Charles  S.  Seaman,  the 
sheriff  of  said  county. 

That  a  copy  of  said  commitment  is  hereto  annexed. 

That  your  petitioner  further  shows  that  he  was  advised  by  his  counsel, 
John  B.  Stanchfield,  Esq.,  and  verily  believes,  his  imprisonment  is  illegal 
for  the  reasons  above  given,  and  because  said  grand  jury  for  the  reason 
above  given  have  no  jurisdiction  to  inquire  into  the  matter  as  aforesaid. 

Your  petitioner  further  says  that  no  prior  or  other  application  for  a 
writ  of  habeas  corpus  to  review  said  commitment  has  been  made  to  any 
court  or  judge. 

Wherefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  may 
forthwith  issue  'directed  to  Charles  S.  Seaman,  sheriff  of  Tompkins 
county,  commanding  him,  the  said  sheriff,  forthwith  to  produce  the  body 
of  your  petitioner,  Frederick  L.  Taylor,  by  him  imprisoned  and  detained, 
together  with  the  cause  of  such  imprisonment  and  detention  before  a 
justice  of  the  Supreme  Court,  so  that  the  cause  and  detention  of  your 
petitioner  may  be  inquired  into  to  the  end  that  he  may  be  discharged 
from  confinement. 

Dated,  March  23,  1894. 

FREDERICK  L.  TAYLOR. 

{Add  7'erijication  hereto.^ 

Petition :— Under  Void  Commitment  by  Court  Martial. 

(100  N.  Y.  20.) 

To  the    Honorable  Sicpreme   Court  of  the   State  of  New    York,  City  and 
County  of  New  York  : 

The  petition  of  Morris  Frey  respectfully  shows : 

1.  That  your  petitioner  is  imprisoned  or  restrained  of  his  liberty  in 
the  county  jail  of  the  county  of  New  York  under  a  process  purporting 
to  be  a  military  warrant  issued  by  one  John  W.  Fleck,  as  president  of  a 
Regimental  Court  Martial  of  the  nth  regiment,  N.  G.  S.  N.  Y. 

2.  That  he  has  not  been  committed  and  is  not  detained  by  virtue  of 
any  judgment,  decree,  final  order,  or  proceedjngs  issued  by  any  court 

•  of  the  United  States,  or  by  any  judge  thereof,  nor  is  he  committted  or 
detained  by  virtue  of  a  final  judgment  or  decree  of  a  competent  tribunal 
of  civil  or  criminal  jurisdiction,  or  a  final  order  thereof,  or  by  virtue  of 
an  execution  or  other  process  issued  upon  such  judgment,  decree,  or 
final  order,  as  specified  in  §  2016  of  the  Code  of  Civil  Procedure. 

3.  The  cause  or  pretence  of  the  imprisonment  or  restraint  according 
to  the  best  knowledge  and  belief  of  your  petitioner  is  for  an  alleged  fine 

6 


WRIT    OF    HABEAS    CORPUS. 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 

of  $20.00  imposed  on  your  petitioner  by  the  said  John  W.  Fleck  as  pres- 
ident of  said  Regimental  Court  Martial. 

That  such  imprisonment  of  your  petitioner  is  illegal  and  unjust  for 
the  following  reasons,  to  wit : 

1.  That  your  petitioner  enlisted  when  he  was  under  21  years  of  age, 
without  the  consent  of  his  parent  then  and  now  living,  which  fact  was 
then  and  now  is  well  known  to  the  regiment  aforesaid,  and  that  your 
petitioner  is  now  under  21  years  of  age. 

2.  That  at  the  time  of  said  enlistment  the  oath  of  allegiance  was  not 
duly  administered  to  your  petitioner  as  required  by  law. 

3.  That  the  Court  Martial  before  which  your  petitioner  was  summoned 
to  appear  then  had  not  and  has  not  now  any  jurisdiction  over  your  peti- 
tioner. 

4.  That  when  your  petitioner  appeared  before  said  Court  Martial  he 
demanded  of,  but  was  denied  by,  the  said  court,  the  right  to  be  heard 
by  counsel. 

5.  That  your  petitioner  was  refused  the  right  to  be  heard  by  the 
Appellate  Court  of  Appeal  from  the  decision  of  said  Court  Martial. 

6.  That  at  the  time  of  your  petitioner's  enlistment  no  enlistment  roll 
was  given  him  as  required  by  law. 

Wherefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  issue 
directed  to  the  warden  of  the  said  county  jail  commanding  him  to  bring 
and  produce  the  body  of  your  petitioner,  Morris  Frey,  before  this 
honorable  court  at  such  time  and  place  as  this  court  shall  designate,  to 
the  end  that  your  petitioner  may  be  discharged  according  to  the  process 
of  law. 

Dated,  the  19th  day  of  June,  1884. 

MORRIS  FREY. 

{Add  verification  hereto!) 

Petition :— For  Custody  of  Child.     (122  N.  Y.  238.) 

To  Ho?i.  George  N.  Kennedy,  one  of  the  Justices  of  the  Supreme  Court  of 
the  State  of  New  York  : 

The  petition  of  LaFayette  E.  Pruyne,  Jefferson  County,  N.  Y.,  re- 
pectfully  shows  : 

That  Tirzah  G.  Bigelow  is  now  imprisoned  and  restrained  of  her 
liberty  by  Charles  H.  Walts  at  the  city  of  Watertown  in  said  county. 

That  said  Tirzah  G.  Bigelow  has  not  been  and  is  not  committed  or 
detained  by  virtue  of  a  mandate  issued  by  a  court  or  judge  of  the  United 
States  in  a  case  where  such  courts  or  judges  have  exclusive  jurisdiction 
under  the  laws  of  the  United  States,  or  have  acquired  exclusive  jurisdic- 
tion by  the  commencement  of  legal  proceedings  in  such  a  court,  nor  has 
she  been  nor  is  she  committed  or  detained  by  virtue  of  a  final  judgment 
or  decree  of  a  competent  tribunal  of  civil  or  criminal  jurisdiction  ;  nor  by 
the  final  order  of  such  a  tribunal  made  in  a  special  proceeding  instituted 
for  any  cause,  nor  by  virtue  of  an  execution  or  other  process  issued 
tipon  such  judgment,  decree  or  final  order,  nor  by  virtue  of  any  judgment, 


WRIT    OF    HABEAS    CORPUS. 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 

decree,  final  order,  or  process  specified  in  §  2016  of  the  Code  of  Civil 
Procedure. 

That  the  cause  or  pretence  of  the  imprisonment  and  restraint,  accord- 
ing to  the  best  knowledge  and  belief  of  your  petitioner,  is  that  said 
Charles  H.  Walts,  in  the  lifetime  of  Malitta  Bigelow,  the  mother  of  the 
said  Tirzah  G.  Bigelow,  entered  into  an  arrangement  with  the  said 
Malitta,  the  particulars  of  which  are  unknown  to  your  petitioner,  whereby 
the  said  Charles  H.  Walts  should  have  her  care  and  custody,  but  he  is 
not,  as  your  petitioner  is  informed  and  believes,  a  relative  to,  by  blood 
or  marriage,  or  guardian  of,  the  said  Tirzah  G.  BigeloM'. 

That  your  petitioner  claims  and  insists  that  such  imprisonment  and 
restraint  is  illegal  in  this,  to  wit : 

That  said  Tirzah  G.  Bigelow  is  an  infant  aged  about  8  years  and  the 
only  child  of  the  late  Lyman  E.  Bigelow  and  Malitta  Bigelow,  his  wife  ; 
that  on  or  about  the  28th  day  of  August,  1884,  the  said  Lyman  E. 
Bigelow  died,  leaving  a  last  will  and  testament  which  was  duly  admitted 
to  probate  by  the  surrogate  of  Jefferson  County,  October  21,  1884,  and 
recorded  in  said  surrogate's  office  in  Book  of  Wills  No.  171  at  page  492, 
and  also  in  the  clerk's  office  of  Jefferson  County  in  Book  No.  240  of 
deeds  at  page  152,  on  the  8th  day  of  November,  1884. 

That  said  will  disposed  of  the  custody  of  said  infant  in  a  clause  thereof 
of  which  the  following  is  a  copy,  viz.  : 

"7.  I  hereby,  pursuant  to  the  statute  of  the  State  of  New  York  in 
such  cases  made  and  provided,  appoint  the  said  LaFayette  E.  Pruyne 
(your  petitioner  meaning)  guardian  during  her  minority  of  my  said 
daughter  Tirzah  G.  Bigelow  ;  hereby  intending  to  dispose  of,  and  I  do 
hereby  dispose  of,  the  custody  and  tuition  of  said  daughter  during  her 
minority  to  said  Pruyne." 

That  the  said  surrogate  of  Jefferson  County  on  the  24th  day  of 
October,  1884,  duly  issued  under  his  hand  and  seal  of  his  office,  letters 
of  guardianship  to  your  petitioner,  he  having  theretofore  taken  oath 
required  by  law  and  duly  qualified  as  such  guardian,  which  said  letters 
of  guardianship  have  never  been  revoked,  but  still  remain  in  full  force 
and  virtue,  and  as  such  guardian,  your  petitioner  claims  the  custody  of 
said  infant. 

That  on  or  about  the  31st  day  of  December,  1886,  the  said  Malitta 
Bigelow  died  at  the  city  of  Watertown,  N.  Y. 

That  an  application  had  been  made  to  the  Hon.  Pardon  C.  Williams, 
one  of  the  justices  of  the  Supreme  Court  of  this  State  for  a  writ  of 
habeas  corpus  herein,  who  on  the  i8thday  of  January,  1887,  allowed  said 
writ,  which  was  returnable  January  24,  1887,  at  the  court-house  in 
Watertown,  at  which  time  a  return  was  made  and  duly  traversed,  but  it 
appearing  on  svich  return  that  said  justice  might  be  a  material  witness 
therein  and  that  he  drew  the  will  by  which  your  petitioner  was  made 
guardian,  he  declined  to  entertain  the  same,  and  on  the  4th  day  of 
February,  1887,  said  writ  was  dismissed  because  of  such  disqualification 
and  without  prejudice  to  a  further  application,  and  an  order  made  and 
entered  accordingly  ;  that  no  other  application  has  been  made  for  a  writ 
of  habeas  corpus  herein. 


84  WRIT   OF    HABEAS   CORPUS. 

Art.   2.     What  Court  luay  Grant  Writ  and  Application  therefor. 

Wherefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  issue 
directed  to  Charles  H.  Walts  commanding  him  to  have  the  body  of  said 
Tirzah  G.  Bigelow  by  him  imprisoned  and  detained,  together  with  the 
cause  of  such  imprisonment  and  detention  before  your  honor  at  such 
time  and  place  as  may  be  convenient  and  proper. 

Dated  the  4th  day  of  February,  1887. 

Lafayette  e.  pruyne, 

{Add  verification  /lereto.) 

Petition  : — Sentence  Beyond   Jurisdiction  of  Court. 

(60  N.  Y.  559.) 

To  the  Supreme  Court  of  the  State  of  New  Yoi'k,  or  to  any  of  the  justices 
thereof  or  to  any  officer  authorized  to  perform  the  duties  of  a  justice  of 
said  court  at  chambers  : 

The  petition  of  William  M.  Tweed  shows  that  he  is  imprisoned  or  re- 
strained of  his  liberty  by  Joseph  L.  Liscomb,  warden  of  the  penitentiary 
of  the  city  of  New  York,  and  that  he  is  not  committed  or  detained  by 
virtue  of  any  process  issued  by  any  court  of  the  United  States  or  by 
any  judge  thereof,  nor  is  he  committed  or  detained  by  virtue  of  a  final 
judgment  or  decree  of  any  competent  tribunal  of  civil  or  criminal  juris- 
diction, or  by  virtue  of  any  execution  issued  upon  such  judgment  or 
decree. 

That  the  cause  or  pretence  of  such  confinement  or  restraint,  accord- 
ing to  the  best  knowledge  or  belief  of  your  petitioner,  is  a  warrant,  order, 
or  process,  a  copy  of  which  is  hereto  annexed, 

Your  petitioner  alleges  that  his  said  imprisonment  under  said  pretence 
is  illegal  and  that  its  illegality  consists  in  the  following,  among  other 
things  : 

1.  That  the  court  from  which  said  warrant  or  process  purports  to 
have  been  issued  had  no  jurisdiction  or  power  to  take  cognizance  of  or 
to  try  the  alleged  misdemeanors  mentioned  in  the  pretended  warrant  or 
process. 

2.  That  the  jury  upon  whose  pretended  verdict  the  said  pretended 
sentences  were  pronounced  was  not  impanelled  according  to  law  of  the 
land  and  had  no  jurisdiction  or  power  to  try  the  said  supposed  offences. 

3.  That  the  judgment  of  the  court  in  execution  of  which  the  said 
pretended  warrant  or  process  was  issued  was  and  is  absolutely  void  for 
want  of  jurisdiction  to  render  the  same. 

4.  That  the  pretended  trial  and  conviction  of  your  petitioner  was  for 
one  misdemeanor  only,  for  which  no  more  than  one  year's  imprisonment 
and  a  fine  of  $250  could  by  law  be  pronounced,  and  for  such  mis- 
demeanor and  conviction  your  petitioner  has  been  imprisoned  already 
for  more  than  one  year,  and  has  also  paid  the  fine  of  $250. 

5.  That  if  the  said  one  year's  imprisonment  was  lawful,  which  your 
petitioner  denies,  each  and  every  pretended  sentence  of  the  said  court 
whereby  your  petitioner  was  condemned  to  any  further  imprisonment 
or  to  any  further  fine  was  and  is  void. 


WRIT   OF    HABEAS   CORPUS.  85 

Art.  2.     What  Court  may  Grant  Writ  and  Application  therefor. 

6.  That  the  term  of  your  petitioner's  imprisonment  under  the  said 
pretended  warrant  or  process  has  expired. 

7.  That  the  said  warrant  or  process  does  not  conform  to  the  alleged 
judgment  of  the  said  Court  of  Oyer  and  Terminer  and  is  not  warranted 
by  the  same. 

Wherefore,  your  petitioner  prays  that  a  writ  of  habeas  corpus  issue, 
directed  to  the  said  Joseph  L.  Liscomb,  warden  of  the  penitentiary  of 
the  city  of  New  York,  commanding  him  to  have  the  body  of  your  peti- 
tioner forthwith  before  the  court  or  officer  granting  said  writ,  together 
with  the  time  and  cause  of  such  imprisonment  and  detention. 

Dated,  December  14th,  1874.  WILLIAM  M.  TWEED. 


Petition  in  Extradition  Case. 

NEW  YORK  SUPREME  COURT. 


The  People  of  the   State  of  New  York  ex  rel. 
Charles  A.  Young. 


agst.  \-  144  N.  Y.  699 

James  C.   Stout  as   Agent  and  Warden  of  the 
State  Prison  at  Auburn,  N.  Y. 

The  petition  of  William  H.  Sullivan  herein  respectfully  shows  and 
alleges  : 

That  Charles  Young,  the  person  in  whose  behalf  the  writ  is  applied 
for,  is  now  imprisoned  and  restrained  in  his  liberty. 

That  he  is  now  confined  in  the  State  prison  at  Auburn  in  the  county 
of  Cayuga,  N.  Y.,  and  the  officer  or  person  by  whom  he  is  so  restrained 
or  imprisoned  is  James  Stout,  Esq.,  agent  and  warden  of  said  prison. 

That  he  has  not  been  committed,  and  is  not  detained,  by  virtue  of  any 
judgment,  decree,  final  order,  process,  or  mandate  issued  by  a  court  or 
judge  of  the  United  States,  in  a  case  where  such  courts  or  judges  have 
exclusive  jurisdiction  under  the  laws  of  the  United  States,  or  have 
acquired  exclusive  jurisdiction  by  the  commencement  of  legal  pro- 
ceedings in  such  a  court ;  or  by  virtue  of  a  final  judgment  or  decree 
of  a  competent  tribunal  of  civil  or  criminal  jurisdiction,  or  a  final  order 
of  such  a  tribunal  made  in  a  special  proceeding  instituted  for  any  cause 
or  by  virtue  of  an  execution  or  other  process  issued  upon  such  a  decree 
or  final  order. 

That  the  cause  or  pretence  of  such  imprisonment  or  restraint  accord- 
ing to  the  best  knowledge  and  belief  of  your  petitioner  is  by  virtue  of  an 
alleged  judgment  of  the  court  of  sessions  of  Monroe  County,  N.  Y. 

That  annexed  hereto  is  a  copy  of  the  mandate  by  virtue  of  which  he 
is  imprisoned  or  restrained. 

That  said  imprisonment  is  illegal  and  contrary  to  law  on  the  following 
grounds : 

That  he  (said  Young)  was  born  in  England  and  has  been  since  birth. 


WRIT   OF   HABEAS   CORPUS. 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 

and  is  now,  a  subject  of  her  Britannic  Majesty,  the  Queen  of  the  United 
Kingdom  of  Great  Britain  and  Ireland. 

That  he  (said  Young)  was  arrested  in  England  within  the  political 
jurisdiction  of  her  Britannic  Majesty,  the  Queen  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  and  extradited  therefrom  for  the  alleged 
commission  of  a  crime  of  "  assault  with  intent  to  commit  murder,"  in 
pursuance  of  a  treaty  and  its  supplement  between  the  United  States  of 
America  and  her  Britannic  Majesty,  and  in  pursuance  of  said  treaty 
delivered  by  the  authorities  of  Great  Britain  to  the  authorities  of  the 
United  States,  and  subsequently  by  the  authorities  of  the  United  States 
to  the  authorities  of  the  State  of  New  York,  to  be  tried  for  the  said 
crime  or  offence  of  "  assault  with  intent  to  commit  murder,"  specified 
in  the  warrant  of  extradition  and  no  other. 

That  he  was  tried  by  the  authorities  of  the  State  of  New  York  for  the 
crime  of  "  assault  with  intent  to  commit  murder,"  being  the  same  crime 
for  which  he  was  extradited,  in  the  court  of  sessions  of  Monroe  County, 
N.  Y.,  and  was  duly  acquitted  of  said  crime  for  which  he  was  extradited, 
to  wit  :   "  assault  with  intent  to  commit  murder." 

That  the  authorities  of  the  county  of  Monroe,  State  of  New  York, 
tried  him  against  his  objection  for  the  crime  of  "  assault  with  intent  to 
commit  murder,"  as  defined  by  the  Penal  Code  of  the  State  of  New 
York,  being  a  crime  different  and  distinct  from  that  for  which  he  was 
extradited,  and  also  being  a  crime  which  has  never  been  and  is  not  now 
extraditable,  and  without  giving  him  an  opportunity  to  return  to  Eng- 
land, from  which  he  had  been  extradited  as  aforesaid,  and  convicted 
him,  the  said  Charles  Young,  at  said  court  of  sessions  of  Monroe 
County,  held  at  Rochester,  N.  Y.,  on  the  nth  day  of  April,  1894,  in 
violation  of  said  treaty  and  supplement  and  the  Constitution  and  laws  of 
the  United  States,  and  which  court  was  then  held  at  the  common  coun- 
cil chambers  in  the  city  hall  in  Rochester,  N.  Y.,  that  being  the  place 
where  the  terms  of  the  county  court  of  Monroe  County  for  the  trial  of 
issues  of  fact  by  a  jury  were  then,  ever  since  have  been,  and  are  now, 
held. 

That  subsequently,  and  on  the  i6th  day  of  July,  1894,  he,  the  said 
Charles  Young,  was  brought  before  the  said  court  of  sessions  at  another 
term  and  at  No.  71  Powers  Building,  in  Rochester,  N.  Y.,  a  place  where 
no  term  of  said  county  court  for  the  trial  of  issues  of  fact  by  a  jury  was 
held,  for  sentence  upon  and  for  said  illegal  conviction. 

That  the  term  of  which  he,  said  Young,  was  convicted  as  aforesaid, 
ended  on  May  5th,  1894,  and  although  the  term  of  said  court  of  sessions 
began  on  May  7th,  1894,  and  ended  on  June  i6th,  1894,  the  said  term 
at  which  he,  the  said  Young,  was  brought  for  sentence  did  not  begin 
until  June  18,  1894. 

That  when  said  Young  was  brought  before  said  court  of  sessions  on 
the  said  16th  day  of  July,  1894,  for  sentence  as  aforesaid,  and  at  the 
place  aforesaid,  he  appeared  by  Messrs.  H.  J.  &  W.  H.  Sullivan,  his 
attorneys  and  counsel,  and  then  and  there  moved  in  arrest  of  judgment 
and  for  a  discharge,  and  objected  to  any  sentence  being  imposed  upon 
him,  the  said  Young,  on  the  following  grounds : 


WRIT    OF    HABEAS    CORPUS.  8/ 

Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 

1.  That  he,  said  Young,  is  a  British  subject,  having  been  extradited 
from  England  on  the  specific  charge  of  "  assault  with  intent  to  commit 
murder,"  and  having  been  acquitted  of  such  charge  he  therefore 
demands  that  he  be  given  his  liberty  and  allowed  a  reasonable  time  to 
return  to  England,  in  accordance  with  the  treaty  and  acts  of  Congress 
relative  thereto. 

2.  The  said  court  of  sessions  had  no  jurisdiction  to  pronounce 
judgment,  because  it  was  not  the  same  court  at  which  he.  said  Young, 
was  tried  and  convicted,  he  having  been  tried  and  convicted  at  the 
March,  1894,  term  of  said  court  of  sessions,  while  the  said  term  at  which 
he  was  brought  for  sentence  began  in  June,  1894. 

3.  That  the  place  at  which  the  court  of  session  was  held  on  said 
July  1 6th,  1894,  was  not  a  place  designated  by  law  for  the  holding  of 
courts  of  session. 

4.  That  said  Young  had  been  sentenced  by  the  Monroe  County  court 
of  sessions  at  the  same  term  of  the  court  at  which  he  was  convicted,  and 
that  said  sentence  and  said  judgment  was  then  still  in  force,  and  that 
the  last  mentioned  court  of  sessions  had  no  jurisdiction  to  pronounce 
another  and  different  sentence  and  judgment. 

5.  That  the  only  time  that  the  Monroe  County  court  of  sessions  could 
he  held  was  when  the  county  court  for  the  trial  of  issues  of  fact  by  a 
jury  was  held,  and  that  the  last  term  of  said  county  court  for  the  trial  of 
issues  of  fact  by  a  jury  began  in  May,  and  ended  in  June,  1894. 

6.  That  the  court  of  sessions  at  which  he,  said  Young,  was  arraigned 
for  sentence  had  no  jurisdiction  or  legal  right  to  pronounce  sentence,  or 
judgment  on  him,  and  that  therefore  he,  said  Young,  demanded  that  the 
right  given  him  by  the  treaty  and  the  acts  of  Congress  relative  thereto, 
should  be  allowed,  that  he  be  discharged  from  further  imprisonment  and 
be  allowed  a  reasonable  time  to  return  to  England,  from  which  he  was 
extradited. 

That  the  said  court  of  sessions  on  said  July  i6th,  1894,  thereupon 
overruled  each  and  every  of  said  Young's  said  objections  as  aforesaid, 
and  after  giving  him  an  objection  to  each  of  the  acts  of  said  court  of 
sessions  in  overruling  said  objections  and  each,  thereupon  sentenced 
said  Young  to  imprisonment  in  the  State  prison  at  Auburn,  N.  Y.,  for  a 
period  of  four  years  and  five  months. 

That  the  pronouncing  of  said  sentence  of  July  i6th,  1894,  at  No.  71 
Powers  Building  in  Rochester,  N.  Y.,  was  in  violation  of  the  laws  of  the 
State  of  New  York ;  said  place  not  being  a  legal  place  for  the  pro- 
nouncing of  said  judgment  or  sentence  and  the  holding  of  said  court. 

That  said  judgment  or  sentence  was  not  pronounced  until  the  i6th 
day  of  July,  1894,  and  said  Young  was  convicted  by  said  jury  on  the 
nth  day  of  April,  1894,  at  a  court  of  sessions  different  than  that  at  which 
said  judgment  or  sentence  was  pronounced,  and  at  a  different  place 
than  the  one  used  for  the  holding  of  the  Monroe  County  court  for  the 
trial  of  issues  of  fact  by  a  jury  at  the  common  council  chambers  in  the 
city  hall  in  Rochester,  N.  Y. 

That  said  Monroe  County  court  of  sessions  was  illegally  held  at  a  time 
when  no  covmty  court  for  the  trial  of  issues  of  fact  by  a  jury  was  in  ses- 


WRIT   OF    HABEAS    CORFUS. 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 


sion ;  that  therefore  said  court  had  no  jurisdiction  of  the  person  of  said 
Young,  and  said  sentencing  and  pronouncing  of  judgment  was  illegal 
and  without  jurisdiction,  and  said  court  had  no  jurisdiction  to  pronounce 
said  judgment  or  sentence,  and  that  said  Young  is  now  illegally  re- 
strained of  his  liberty ;  that  he,  said  Young,  has  no  means  to  pay  the 
disbursements  and  fees  in  this  matter. 

Wherefore,  this  application  is  made  to  issue  a  writ  of  habeas  corpus 
in  behalf  of  said  Charles  Young  pursuant  to  the  provisions  of  the  Code 
of  Civil  Procedure. 

Dated,  at  the  city  of  Rochester,  N.  Y.,  this  September  26,  1894, 

WILLIAM  H.   SULLIVAN, 

{Add  verification  hereto.  Petitioner. 

Petition  to  Obtain  Custody  of  Infant.— Short  Form. 

To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  Alonzo  Freeman,  of  the  city  of  Kingston,  Ulster 
County,  respectfully  shows :  That  he  is  the  husband  of  Celia  Freeman, 
who  also  resides  in  said  city  but  apart  from  your  petitioner.  That  said 
Celia  Freeman  has  the  custody  of  an  infant  child  of  your  petitioner  and 
his  said  wife,  named  Henry  Freeman,  aged  thirteen  years. 

That  your  petitioner  is  engaged  in  business  as  a  master  mechanic  in  said 
city  and  is  able  and  willing  to  support  said  child  ;  that  he  resides  with 
his  mother,  the  grandmother  of  said  child,  who  is  willing  to  take  the  care 
of  said  child  so  far  as  may  be  necessary,  and  that  the  petitioner  is  desirous 
that  said  child  shall  have  a  home  with  your  petitioner  and  its  grand- 
mother. That  his  said  wife  has  no  means  of  her  own  for  the  support 
or  education  of  said  child. 

Wherefore  your  petitioner  prays  a  writ  of  habeas  corpus  to  deliver  said 
child  from  the  custody  of  its  mother,  and  that  your  petitioner  may  be 
awarded  the  custody  of  said  child. 

(Signature  and  verification  as  to  pleading.) 

Precedent  for  Affidavit. 

Ulster  County,  ss.  : 

John  F.  Cloonan,  of  the  city  of  Kingston,  being  duly  sworn,  says  that 
he  is  attorney  for  Patrick  Larkin,  who  subscribed  and  verified  the  peti- 
tion for  a  writ  of  habeas  corpus  hereto  annexed.  That  there  is  no  Special 
or  General  Term  of  the  Supreme  Court  now  in  session  in  the  county  of 
Ulster,  where  the  petitioner  is  confined.  That  there  is  no  justice  of  the 
Supreme  Court  in  the  county  of  Ulster,  or  any  officer  authorized  to  per- 
form his  duties  except  the  county  judge  of  said  county,  who  is 
incapacitated  from  performing  the  duties  of  his  office  by  reason  of 
sickness. 

Wherefore  the  petitioner  applies  to  the  county  judge  of  the  county  of 
Greene,  an  adjoining  county,  for  the  writ  prayed  for  in  the  petition. 

(Jurat.)  (Signature.) 

It  is  held  {People  v.  Barnett,  13  Abb.  8),  that  an  afifidavit  is  nee- 


WRIT   OF   HABEAS   CORPUS.  89 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 


essary  as  to  judge  being  disqualified.  The  affidavit  should  be 
explicit,  and  it  is  not  enough  for  the  deponent  to  state  he  cannot 
find  a  judge,  and  it  should  not  be  made  several  days  before  the 
application.  Id.  By  People  v.  Folinsbee,  60  Barb.  480,  and  People 
ex  rel.  v.  Hamia,  3  How.  39,  it  is  held  that  this  does  not  affect 
the  jurisdictiou. 

Writ  of  Habeas  Corpus. 

The  People  of  the  State  of  New   York,  to  George  Young,  Sheriff  of  the 
Coutity  of  Ulster  : 

We  command  you  that  you  have  the  body  of  Richard  Stokes,  by  you 
imprisoned  and  detained  as  it  is  said,  together  with  the  time 
[  L.  s.  ]  and  cause  of  such  imprisonment  and  detention,  by  whatsoever 
name  the  said  Richard  Stokes  is  called  or  charged,  before 
William  S.  Kenyon,  Esq.,  county  judge  of  Ulster  County,  at  his  chambers 
in  the  city  of  Kingston,  in  the  county  of  Ulster,  at  nine  o'clock  in  the 
forenoon,  on  the  2d  day  of  May,  1887,  to  do  and  receive  what  shall  then 
and  there  be  considered  concerning  the  said  Richard  Stokes,  and  have 
you  then  there  this  writ. 

Witness,  Hon.  William  S.  Kenyon,  county  judge  of  Ulster  County  at 
Kingston,  this  31st  day  of  June,  1887.  '  JACOB  D.  WURTS, 

Clerk. 

Indorsed  : — "  The  within  writ  allowed  this  31st  day  of  April,   1887." 

WILLIAM  S.  KENYON. 

Ccimty  fudge  of  Ulster  County. 

The  tender  of  fees  and  bond  are  not  required  in  case  a  district  at- 
torney or  the  attorney-general  applies  for  the  writ.  §  2002.  Otherwise, 
§§  2000   and  2001  must  be  complied  with. 


Writ.     (143  N.  Y.  219.) 

The  People  of  the  State  of  New  York,  to  Charles  S.  Seeman,  Slier ff  of  the 
County  of  To7npkins  in  the  State  of  New  York  : 

We  command  you  that  you  have  the  body  of  Frederick  L.  Taylor,  by 
you  imprisoned  and  detained  as  it  is  said,  together  with  the  time  and 
cause  of  such  imprisonment  and  detention,  by  whatsoever  name  the  said 
Frederick  L,  Taylor  is  called  or  chafged,  before  Hon.  Walter  Lloyd 
Smith,  a  justice  of  the  Supreme  Court  of  the  State  of  New  York,  at  the 
court-house  in  the  village  of  Watkins  in  the  county  of  Schuyler  in  the 
State  of  New  York,  at  2  o'clock  in  the  afternoon  on  the  26th  day  of 
March,  1894,  to  do  and  receive  what  shall  then  and  there  be  con- 
sidered concerning  the  said  Frederick  L.  Taylor,  and  have  you  then  and 
there  this  writ. 


90  WRIT    OF    HABEAS    CORPUS. 


Art.   2.     What  Court  iiia}'  Grant  Writ  and  Application  therefor. 


Witness :  Hon.  Walter  Lloyd  Smith,  a  justice   of   the  Supreme 
[  L.  s.  ]     Court  of  the  State  of  New  York,  at  Elmira,  Chemung  County, 
N.  Y.,  this  24th  day  of  March,    1894. 

D.  N.  HELLER, 

Clerk. 
Indorsed  : — "  The  within  writ  allowed  this  24th  day  of  March,  1894," 

WALTER   LLOYD  SMITH, 

Justice  Suprefne  Court. 

Writ.     (122  N.  Y.  238.) 

The  People  of  the  State  of  Nezv  York,  to  Charles  H.  Walts  : 

We  command  you  that  you  have  the  body  of  Tirzah  G.  Bigelow  by 
you  imprisoned  and  detained,  as  it  is  said,  together  with  the  time  and 
cause  of  such  imprisonment  and  detention,  by  whatsoever  name  she  shall 
be  called  or  charged,  before  the  Hon.  George  N.  Kennedy,  at  the  court- 
house in  the  city  of  Watertown,  on  the  12th  day  of  February,  1887,  at 
10  o'clock  A.  M.,  to  do  and  receive  what  shall  then  and  there  be  con- 
sidered concerning  the  said  Tirzah  G.  Bigelow,  and  have  you  then  and 
there  this  writ. 

Witness  :    Hon.  George  H.  Kennedy,  one  of  the  justices  of  the 
[  L.  s.  ]     Supreme    Court    of  the   State    of    New   York,    the    5th    day 
of  February,  1887.  O.  D.  GREENE, 

Clerk. 
Indorsed  : — "  The  within  writ  allowed  this  5th  day  of  February.  1898. 

"GEORGE  H.  KENNEDY, 

'■'■Justice  Supreme  Couft.^' 

Writ.     (60  N.  Y.  559.) 

The  People  of  the  State  of  New  York,  to  Joseph  L.  Liscomr,  Warden  of  the 
Penitentiary  of  the  City  of  New    York,  greeting  : 

We  command  you  that  you  have  the  body  of  William  M.  Tweed  by 
you  imprisoned  and  detained,  as  it  is  said,  together  with  the  time  and 
cause  of  such  detention  and  imprisonment,  by  whatsoever  name  he  shall 
be  called  or  charged,  before  the  Court  of  Oyer  and  Terminer  in  and  for 
the  city  and  county  of  New  York  at  the  court-house  in  the  city  of  New 
York  on  the  1  7th  day  of  December,  1874,  at  11  o'clock  A.  M.  of  that  day, 
to  do  and  receive  what  shall  then  and  there  be  considered  concern- 
ing him,  and  have  you  then  and  there  this  writ. 

Witness :   Hon.  A.  R.    Lawrence,  justice  of  the   Supreme  Court, 
[l.  s.]        the  15th  day  of  December,  1874. 

By  the  Court :  WILLIAM  WALSH, 

Clerk. 

Indorsed: — "The  within  writ  allowed  this  115  th  day  of  December, 
1874.  "  A.  R.  LAWRENC^E. 

'^^  Justice  Supreme  Court.'' 


WRIT    OF    HABEAS   CORPUS.  9I 


Art.   2.     What  Court  may  Grant  Writ  and  Application  therefor. 


Order  for  Writ. 

NEW  YORK  SUPREME  COURT.  Caption  in  Appellate  Division. 
^ 1 

The  People  of  the  State  of  New  York  ex    rel. 
Charles  Young. 

agst.  \  144  N.  Y.  699. 

I 
I 

James    C.   Stout,   agent   and  warden  of   State 
Prison  at  Auburn,  N.  Y. 


On  reading  and  filing  the  petition  of  William  H.  Sullivan,  one  of  the 
attorneys  for  the  relator,  verified  this  day,  asking  for  a  writ  of  habeas 
corpus  herein,  and  upon  motion  of  Messrs.  H.  J.  &  W.  H.  Sullivan,  at- 
torneys and  of  counsel  for  said  relator,  it  is 

Ordered : — That  a  writ  oi/iabeas  corpus  issue  under  the  hand  and  seal 
of  the  county  clerk  of  Monroe  County,  aud  allowed  by  said  presiding 
justice  for  this  court,  directed  to  said  defendant,  requiring  him  to  pro- 
duce the  body  of  the  relator  before  this  General  Term  at  the  place  afore- 
said on  the  4th  day  of  October,  1894,  at  10  o'clock  A.  M.,  to  the  end 
that  said  General  Term  may  inquire  into  the  detention  of  said  relator, 
and  that  a  copy  of  said  writ  be  served  personally  on  the  district  attorney 
of  Monroe  County  or  one  of  his  assistants  at  his  office  in  Rochester,  N.  Y., 
and  that  a  copy  of  said  writ  be  mailed  to  the  district  attorney  of  Cayuga 
County  and  that  said  service  and  mailing  be  made  on  or  before  Septem- 
ber 27th,  1894.  K.  P.  SHEDD, 

Clerk. 

Writ.      (144  N.  Y.  699.) 

The  People  of  the  State  of  New  York,  to  James  C.  Stout,  Esq.,  Agent  ajid 
Warden  of  the  State  Prison  at  Auburn,  N.   Y : 

We  command  you  that  you  have  the  body  of  Charles  Young,  by  you 
imprisoned  and  detained,  as  it  is  said,  together  with  the  time  and  cause 
of  such  imprisonment  and  detention,  by  whatever  name  the  said 
Charles  Young  shall  be  called  or  charged,  before  the  General  Term  of 
the  Supreme  Court  of  the  State  of  New  York  in  and  for  the  Fifth  judicial 
department  at  a  term  thereof  to  be  held  at  No.  735  Powers  Building, 
seventh  floor,  in  the  city  of  Rochester,  county  of  Monroe,  N.  Y.,  on  the 
4th  day  of  October,  1894,  at  10  o'clock  A.  M.,to  do  and  receive  what 
shall  then  and  there  be  considered  concerning  the  said  Charles  Young, 
and  that  you  have  then  and  there  this  writ. 

Witness  :   Hon.  Charles  C.  Dwight,  presiding  justice  and  one  of 
[l.  s.]        the  justices   of  the  said  Supreme  Court,  General  Term,  this 
26th  day  of  September,  1894.  K.  P.  SHEDD, 

Clerk. 
Indorsed : — "  The  within  writ  allowed  this   26th  day   of   September, 
1894.  "  CHARLES  C.  DWIGHT, 

"  fustice  Supreme  Court." 


92  WRIT    OF    HABEAS    CORPUS. 

Art.  3.     Duty  of  Court,  Officer,  or  Other  Person  Relative  to  Writ. 


ARTICLE    III. 

Duty  of  Court,  Officer,  or  Other  Person  Relative  to 
Writ.     §§  2025,  2051,  2052,  2053,  2020,  2065. 

§  2025.    When  writ  to  issue  without  application. 

Where  a  justice  of  the  Supreme  Court,  in  court  or  out  of  court,  has  evidence,  in  a 
judicial  proceeding  taken  before  him,  that  any  person  is  illegally  imprisoned  or  re- 
strained in  his  liberty,  within  the  State;  or  where  any  other  judge,  authorized  by  this 
article  to  grant  the  writs,  has  evidence,  in  like  manner,  that  any  person  is  thus  im- 
prisoned or  restrained,  within  the  county  where  the  judge  resides,  he  must  issue  a 
writ  of  habeas  corpus  or  a  writ  of  certiorari,  for  the  relief  of  that  person,  although  no 
application  therefor  has  been  made. 

§  205 1 .  Penalty  for  violating  the  last  section. 

If  a  court,  or  judge,  or  any  other  person,  in  the  execution  of  a  judgment,  order,  or 
other  mandate,  or  otherwise  knowingly  violates,  causes  to  be  violated,  or  assists  in 
the  violation  of,  the  last  section,  he,  or  if  the  act  or  omission  was  that  of  a  court, 
each  member  of  the  court  assenting  thereto,  forfeits,  to  the  prisoner  aggrieved,  one 
thousand  two  hundred  and  fifty  dollars.  He  is  also  guilty  of  a  misdemeanor;  and, 
upon  conviction  thereof,  shall  be  punished  by  fine,  not  exceeding  one  thousand  dol- 
lars, or  by  imprisonment,  not  exceeding  six  months,  or  by  both  in  the  discretion  of 
the  court. 

2  R.  S.  563,  §  60  and  part  of  §  64. 

ij  2052.    Id. ;  for  concealing  prisoner,  etc.,  to  avoid  writ. 

Any  one,  having  in  his  custody,  or  under  his  power,  a  person  entitled  to  a  writ  of 
habeas  corpus  or  a  writ  of  certiorari,  as  prescribed  in  this  article,  or  a  person  for  whose 
relief  a  writ  of  habeas  corpus  or  a  writ  of  certiorari  has  been  duly  issued,  as  prescribed 
in  this  article,  who,  with  intent  to  elude  the  service  of  the  writ,  or  to  avoid  the  effect 
thereof,  transfers  the  prisoner  to  the  custody,  or  places  him  under  the  power  or  con- 
trol, of  another,  or  conceals  him,  or  changes  the  place  of  his  confinement,  is  guilty  of 
a  misdemeanor;  and,  upon  conviction  thereof,  shall  be  punished  as  specified  in  the 
last  section. 

2053.    Id. ;  for  aiding,  etc. 

A  person  who  knowingly  assists  in  the  violation  of  the  last  section,  is  guilty  of  a 
misdemeanor;  and,  upon  conviction  thereof, shall  be  punished  as  specified  in  the  last 
section  but  one. 

§  2020.  When  writ  must  be  granted ;  penalty  for  refusing. 

A  court  or  a  judge,  authorized  to  grant  either  writ,  must  grant  it  without  delay, 
whenever  a  petition  therefor  is  presented,  as  prescribed  in  the  foregoing  sections  of 
this  article,  unless  it  appears,  from  the  petition  itself,  or  the  documents  annexed 
thereto,  that  the  petitioner  is  prohibited  by  law  from  prosecuting  the  writ.  For  a 
violation  of  this  sectioir,  a  judge,  or,  if  the  application  was  made  to  a  court,  each 
member  of  the  court,  who  assents  to  the  violation,  forfeits  to  the  prisoner  one  thou- 
sand dollars,  to  be  recovered  by  an  action  in  his  name,  or  in  the  name  of  the  petition 
to  his  use. 


WRIT   OF   HABEAS   CORPUS.  93 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

The  act  of   issuing  a  habeas  is  held  to  be  ministerial    and  not 
judicial.     Nash  v.  The  People,  36  N.  Y.  607. 

§  2065.    Penalty  for  refusing  copy  of  process,  etc. 

An  officer  or  other  person,  who  detains  any  one  by  virtue  of  a  mandate,  or  other 
written  authority,  must,  upon  reasonable  demand,  and  tender  of  his  fees,  deliver  a 
copy  thereof  to  any  person  who  applies  therefor,  for  the  purpose  of  procuring  a  writ 
of  habeas  corpus  or  a  writ  of  certiorari,  in  behalf  of  the  prisoner.  If  he  knowingly 
refuses  so  to  do,  he  forfeits  two  hundred  dollars  to  the  prisoner. 


ARTICLE    IV. 

Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 
§§  2024,  2026,  2027,  2037,  2038. 

§  2024.    When  writ  sufllcient. 

The  writ  of  habeas  corpus  or  the  writ  of  certiorari  shall  not  be  disobeyed,  for  any 
defect  of  form,  and  particularly  in  either  of  the  following  cases  : 

1.  If  the  person  having  the  custody  of  the  prisoner  is  designated,  either  by  his 
name  of  office,  if  he  has  one,  or  by  his  own  name;  or,  if  both  names  are  unknown  or 
uncertain,  by  an  assumed  appellation.  Any  person  upon  whom  the  writ  is  served,  is 
deemed  to  be  the  person  to  whom  it  is  directed,  although  it  is  directed  to  him  by  a 
wrong  name  or  description,  or  to  another  person. 

2.  If  the  person  directed  to  be  produced  is  designated  by  name,  or  otherwise 
described  in  any  way,  so  as  to  be  identified  as  the  person  intended. 

^  2026.    Return ;  its  contents. 

The  person  upon  whom  either  writ  has  been  duly  served,  must  state,  plainly  and 
unequivocally,  in  his  return  : 

1 .  Whether  or  not,  at  the  time  when  the  writ  was  served,  or  at  any  time  theretofore 
or  thereafter,  he  had  in  his  custody,  or  under  his  power  or  restraint,  the  person  for 
whose  relief  the  writ  was  issued. 

2.  If  he  so  had  that  person,  when  the  writ  was  served,  and  still  has  him,  the  au- 
thority and  true  cause  of  the  imprisonment  or  restraint,  setting  it  forth  at  length.  If 
the  prisoner  is  detained  by  virtue  of  a  mandate  or  other  written  authority,  a  copy 
thereof  must  be  annexed  to  the  return,  and,  upon  the  return  of  the  writ,  the  original 
must  be  produced  and  exhibited  to  the  court  or  judge. 

3.  If  he  so  had  the  prisoner  at  any  time,  but  has  transferred  the  custody  or 
restraint  of  him  to  another,  the  return  must  conform  to  the  return  required  by  the 
second  subdivision  of  this  section,  except  that  the  substance  of  the  mandate  or  other 
written  authority  may  be  given,  if  the  original  is  no  longer  in  his  hands;  and  that 
the  return  must  state  particularly  to  whom,  at  what  time,  for  what  cause,  and  by  what 
authority,  the  transfer  was  made. 

The  return  must  be  signed  by  the  person  making  it,  and,  unless  he  is  a  sworn 
public  officer,  and  makes  his  return  in  his  official  capacity,  it  must  be  verified  by 
his  oath. 

2  R.  S.  563,  §  32. 


94  WRIT   OF   HABEAS   CORPUS. 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

t^  2027.  Habeas  corpus;  body  of  prisoner  to  be  produced, 
unless,  etc. 

The  person,  upon  whom  a  writ  of  habeas  corpus  has  been  duly  served,  must  also 
bring  up  the  body  of  the  prisoner  in  his  custody,  according  to  the  command  of  the 
writ,  unless  he  states,  in  his  return,  that  the  prisoner  is  so  sick  or  infirm,  that  the  pro- 
duction of  him  would  endanger  his  life  or  his  health. 

§  2037.   Custody  of  prisoner  pending  the  proceedings. 

Pending  the  proceedings,  and  before  a  final  order  is  made  upon  the  return,  the  court 
or  judge,  before  which  or  whom  the  prisoner  is  brought,  may  either  commit  him  to  the 
custody  of  the  sheriff  of  the  county  wherein  the  proceedings  are  pending,  or  place 
him  in  such  care  or  custody,  as  his  age  and  other  circumstances  require. 

§  2038.  Notice  to  person  interested  in  detention. 

Where  it  appears,  from  the  return  to  either  writ,  that  the  prisoner  is  in  custody  by 
virtue  of  a  mandate,  an  order  for  his  discharge  shall  not  be  made,  until  notice  of  the 
time  when,  and  the  place  where,  the  writ  is  returnable,  or  to  which  the  hearing  has 
been  adjourned,  as  the  case  may  be,  has  been  either  personally  served,  eight  days 
previously,  or  given  in  such  other  manner,  and  for  such  previous  length  of  time,  as 
the  court  or  judge  prescribes,  as  follows: 

1.  Where  the  mandate  was  issued  or  made  in  a  civil  action  or  special  proceeding, 
to  the  person  who  has  an  interest  in  continuing  the  imprisonment  or  restraint,  or  his 
attorney. 

2.  In  every  other  case,  to  the  district  attorney  of  the  county,  within  which  the 
prisoner  was  detained,  at  the  time  when  the  writ  was  served. 

For  the  purpose  of  an  appeal,  the  person  to  whom  notice  is  given  as  prescribed  in 
the  first  subdivision  of  this  section,  becomes  a  party  to  the  special  proceeding. 

Under  the  provisions  of  §  2038,  the  district  attorney  should 
have  notice  of  a  proceeding  by  habeas  corpus  where  a  person  has 
been  convicted  of  a  criminal  offence,  and  the  county  judge  has 
no  right  to  discharge  a  prisoner  without  such  notice.  People  v. 
Carter,  48  Hun,  166,  14  Civ.  Pro.  241. 

Failure  to  give  notice  to  district  attorney  when  required  by 
law,  renders  the  granting  of  an  order  of  discharge  irregular. 
People  ex  rcl.  Navagh  v.  Frink,  41  Hun,  188,  4  St.  Rep.  162. 
Section  2038  requires  notice  of  the  hearing  to  be  given  to  the 
person  interested  in  continuing  the  imprisonment  of  the  relator. 
Such  notice  should  be  given  to  the  plaintiff  in  a  divorce  suit, 
where  defendant  seeks  to  be  liberated  on  habeas  eorpiis  from  a 
commitment  for  failure  to  pay  alimony  and  counsel  fees.  Pco. 
ex  re/.  Clark  v.  Grant,  11 1  N.  Y.  587.  A  copy  of  the  petition 
need  not  be  served ;  it  is  sufficient  to  serve  a  notice  giving 
the  time  and  place  where  the  writ  is  made  returnable.  P.x 
parte  Beatty,  12  Wend.  229.     Notice  must    be  given,  although 


WRIT   OF   HABEAS   CORPUS.  95 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

the  party  interested  resides  out  of  the  county.  People  v. 
Pelhmn,  14  id.  48.  In  case  of  criminal  contempt,  notice  must 
be  given  the  district  attorney.  People  v.  Cassells,  5  Hill, 
164.  An  order  to  show  cause  may,  upon  same  grounds  stated 
as  in  ordinary  case,  take  the  place  of  the  notice  of  eight  days. 

In  computing  the  term  of  six  months  to  which  imprisonment 
is  limited,  under  §111  of  the  Code,  the  time  during  which  the 
person  is  out  of  jail  in  the  custody  of  his  counsel,  pending  habeas 
corpus  proceedings,  is  not  to  be  included.  People  ex  rcl.  Clark  v. 
Grant,  14  Civ.  Pro.  37.  It  is  proper  for  a  person  to  be  com- 
mitted to  the  custody  of  the  sheriff  pending  a  trial  as  to 
whether  he  should  be  recommitted  to  the  State's  prison  under 
an  original  sentence  for  violation  of  the  conditions  upon  which 
his  sentence  was  commuted.  People  v.  Burns,  yj  Hun,  95, 
affirmed,  143  N.  Y.  665.  Upon  the  writ  of  certiorari  to 
inquire  into  the  cause  of  detention,  the  party  is  required  to 
return  to  the  judge  issuing  the  writ,  by  what  right  he  holds 
the  custody  of  the  person  detained.  Under  this  requirement, 
he  returns  simply  the  commitment.  People  ex  rel.  Taylor  v. 
Seaman,  8  Misc.  153,  59  St.  Rep.  463,  29  Supp.  329.  In 
People  ex  rel.  Trainer  v.  Baker,  89  N.  Y.  460,  where  the  peti- 
tion on  application  for  a  writ  to  inquire  into  the  cause  of  de- 
tention of  one  confined  in  a  penitentiary  did  not  allege  that  the 
relator  was  detained  without  a  proper  warrant  of  commitment^ 
and  the  writ  did  not  require  the  keeper  to  return  the  warrant  or 
other  instrument  by  which  he  detained  the  relator,  but  simply 
required  the  return  of  the  cause  of  his  imprisonment,  it  was  held 
that  the  certified  minutes  of  the  court  showing  the  judgment  and 
sentence  imposed  sufficiently  answered  the  writ,  and  the  keeper 
was  not  required  to  return  the  warrant. 

Production  of  the  commitment  is  not  sufficient.  Matter  of 
Haller,  3  Abb.  N.  C.  65.  The  sworn  statement  of  a  party  on 
whom  the  writ  was  not  served  is  not  admissible  as  a  return. 
People  ex  rel.  v.  Mercein,  8  Paige,  47.  An  officer  making  a  re- 
turn should  show  that  the  prisoner  is  not  under  his  control. 
Matter  of  Stacy,  10  Johns.  328.  A  sheriff's  return  should  be  con- 
strued liberally.  People  v.  Nevins,  i  Hill,  154.  A  return  may  be 
amended.  5  Wait's  Pr.  532,  and  cases  cited;  3  Hill,  657,  note  ; 
Matter  of  Hobson,  40  Barb.  34.  The  answer  in  writing  signed  by 
the  party  to  whom  the  writ  is  addressed,  stating  the  time  and  cause 


96  WRIT   OF   HABEAS   CORPUS. 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

of  the  caption  and  detention  of  the  prisoner,  and  his  production 
before  the  court  or  judge,  or  if  the  prisoner  is  not  produced,  then 
the  reason  for  not  producing  him,  constitutes  the  return. 

This  should  be  made  without  delay.  It  is  not  absolutely 
necessary  that  the  party  to  whom  the  writ  is  addressed  should 
appear  before  the  court  if  the  prisoner  is  produced.  Hurd  on 
Habeas  Corpus,  235.  The  return  should  be  as  was  held  by 
Chancellor  Kent  in  case  of  non-production  of  the  party,  in  case 
of  a  military  officer,  that  he  is  not  in  his  possession  or  power. 
Matter  of  Stacy,  10  Johns.  328.  The  return  in  case  of  non-pro- 
duction of  the  prisoner  must  be  full  and  complete,  and  an  evasive 
return  will  not  be  tolerated.  Rex  v.  Winton,  5  T.  R.  89.  The 
time  and  cause  of  the  taking  must  be  stated  in  the  return  and 
body  produced,  and  to  justify  the  detention  sufificient  authority 
must  be  shown. 

The  entire  history  of  the  proceeding  may  be  set  out  in  the  re- 
turn, and  copies  of  all  papers  should  be  annexed.  Shaw  v.  Smith, 
8  Ind.  485  ;  Rex  v.  Clark,  3  Salk.  349.  When  an  officer  is  called 
on  for  a  return  he  should  produce  a  copy  of  the  record  showing 
the  commitment.     Randall  w.  Bridge,  2  Mass.  549. 

The  production  of  the  body  is  a  necessary  element  of  the  writ 
which  issues  for  the  purpose  of  protecting  the  liberty  of  the 
person.  As  in  ordinary  proceedings  the  determination  of  the 
right  to  his  liberty  is  the  matter  for  ultimate  decision,  the  writ 
begins  with  a  demand  for  that  liberty,  and  demands  his  presence 
before  the  court  for  summary  determination.  As  has  heretofore 
been  said  and  appears  by  the  foregoing  section,  the  return  must 
give  the  reason  for  non-production  in  case  of  sickness  or  in- 
firmity. Without  the  production  of  the  body  the  case  has  no 
status.     In  re  Lampert,  10  Week.  Dig.  109. 

The  person  upon  whom  the  writ  has  been  duly  served  must 
bring  up  the  body  of  the  prisoner  under  peril  in  case  of  neglect 
of  attachment  and  commitment.  People  ex  rel.  James  v.  Society 
for  the  Prevention  of  Cnielty  to  Children,  19  Misc.  678. 

Precedent  for  Notice  to  Interested  Party. 

To  ].   N.  Vanderlvn,  Esq.,  District  Attorney  of  Ulster  County  : 

Please  take  notice  that  a  writ  of  Italtcas  corpus,  to  inquire  into  the 
imprisonment  of  Richard  Stokes,  now  confined  by  George  Young,  sheriff 


WRIT    OF    HABEAS    CORPUS.  97 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

of  Ulster  County,  in  the  common  jail  of  said  county,  on  a  commitment 
made  by  a  court  of  special  sessions  in  the  town  of  Marbletown,  has 
been  issued,  and  made  returnable  on  the  loth  day  of  May,  1887,  before 
the  Hon.  William  S.  Kenyon,  county  judge  of  Ulster  County,  at  his 
chambers  in  the  city  of  Kingston,  at  ten  o'clock  in  the  forenoon  of  that 
day. 

Dated  April  26,  1887.  JOHN  F.  CLOONAN,^ 

Attorney  for  Petitioner. 

Precedent  for  Return,  where  Person  is  in  Custody. 

(38  Hun,  280.) 

To  the  Hon.  William  S.  Kenyon,   County  Judge  of  Ulster  County  : 

In  obedience  to  the  writ  of  habeas  corpus  hereto  annexed,  I  certify 
and  return  :  That  on  the  31st  day  of  April,  1887,  and  before  the  said  writ 
came  to  me,  the  said  Richard  Stokes  was  in  my  custody  and  detained 
by  me  in  the  county  jail  of  the  county  of  Ulster,  under  and  by  virtue  of 
a  commitment,  a  copy  of  which  is  hereto  annexed,  issued  by  F.  D.  L. 
Montanye,  Esq.,  a  justice  of  the  peace  of  the  town  of  Marbletown  in 
said  county.  That  the  said  Richard  Stokes  is  still  in  my  custody  under 
said  commitment,  all  of  which  I  certify  and  have  now  here  the  body  of 
said  Richard  Stokes,  as  by  said  writ  I  am  commanded. 

GEORGE  YOUNG, 

Sheriff. 

Precedent  for  Return  where  Person  is  not  in  Custody  of  Party 
to  whom  Writ  is  Directed. 

SUPREME  COURT. 


In  the  Matter  of  the  Application  of  Alonzo 
Freeman  for  a  Writ  of  Habeas  Corpus,  to 
bring  up  the  body  of  Henry  Freeman,  infant. 


To  the  Supreme  Court  of  the  State  of  New    York  : 

The  return  of  Celia  Freeman  alleges  and  shows  to  the  court  that  the 
infant,  Henry  Freeman,  is  not  and  has  not  been  at  any  time  for  three 
months  last  past  under  her  control  or  in  her  custody. 

That  as  she  is  informed  and  believes,  the  said  Henry  Freeman  is  now 
at  Litchfield,  in  the  State  of  Connecticut,  and  your  petitioner  cannot 
produce  the  body  of  said  Henry  Freeman. 

Dated  December  28,  1885.  CELIA  FREEMAN. 

(Add  verificatioti.^ 


98  WRIT   OF   HABEAS   CORPUS. 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

Return. 

NFW  YORK  SUPREME  COURT. 


In  the  Matter  of  the  Application 
of 
Frederick  L.  Taylor  for  a  writ  of   habeas  corpus 
to  bring  up  the  body  of   him,  the  said  Fred- 
erick L.  Taylor. 


.  143  N.  Y.  219. 


To  the  Hon.  Walter  Lloyd  Smith,  Justice  of  the  Supreme  Coicrt : 

In  obedience  to  the  writ  of  habeas  corpus  hereto  annexed  I  certify  and 
return  that  on  the  22d  day  of  March,  1894,  and  before  said  writ  came 
to  me,  the  said  Frederick  L.  Taylor  was  in  my  custody  and  detained 
by  me  in  the  county  jail  of  Tompkins  County  under  and  by  virtue  of  the 
mandate,  a  copy  of  which  is  hereto  annexed,  issued  by  the  Court  of 
Oyer  and  Terminer  of  the  county  of  Tompkins,  committing  the  said 
Frederick  L.  Turner  to  my  custody  as  sheriff  of  Tompkins  pending  a 
charge  of  criminal  contempt.  That  the  said  Frederick  L.  Taylor  is  still 
in  my  custody  under  said  mandate,  all  of  which  I  certify,  and  have 
now  here  the  body  of  said  Frederick  L.  Taylor,  as  by  said  writ  I  am 
commanded. 

Dated  March  26th,  1894.  CHARLES   S.   SEAMAN, 

Sheriff  of  the  County  of  Tompkins, 

Return  Setting  Out  Jurisdiction. 


The  People  of  the  State  of  New   York   ex  ret. 
Morris  Frey, 


agst.  ^  ICO  N.  Y.  20, 


The  Warden  of  the  County  Jail  of  New  York 
County  and  the  nth  Regiment,  N.  Y.  V. 


The  return  of  Captain  John  W.  Fleck,  president  of  the  court  mar- 
tial, to  the  writ  of  habeas  corpus  herein,  respectfully  shows  : 

1.  That  it  is  true  that  the  petitioner  was  under  age  when  he  enlisted, 
but  it  is  not  true  that  he  enlisted  without  the  consent  of  his  parent  or 
guardian,  as  appears  from  the  enlistment  papers  presented  herein. 

2.  That  said  enlistment  was  legal  and  in  proper  form  and  that  said 
Frey  was  duly  sworn  in  accordance  with  the  Military  Code. 

3.  That  the  court  martial  before  which  the  said  petitioner  was  tried 
was  convened  by  special  orders  and  in  compliance  with  law,  and  the 
petitioner  was  duly  summoned  before  said  court  martial  for  certain  de- 
linquencies, that  he  appeared  and  after  due  hearing  was  fined  $20. 

4.  That  it  is  not  true  that  the  petitioner  was  denied  the  right  to  ap- 
pear by  counsel,  the  ca.se  was  adjourned  to  a  later  evening  of  which  the 
petitioner  had  notice,  and  also  of  his  right  to  appear  by  counsel. 


WRIT   OF   HABEAS   CORPUS.  99 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

5.  That  as  this  respondent  is  informed  and  beUeves,  that  it  is  not 
true  that  the  petitioner  was  denied  the  right  of  appeal. 

6.  That  said  Frey  was  duly  committed  in  proper  form,  to  which  your 
respondent  begs  leave  to  refer  to  as  part  of  this  return. 

JOHN  W.  FLECK. 
{Add  verificatmi  hereto. ) 

Return  Setting  Out  Facts  Fully  of  Detention  of  Child. 

(122  N.  Y.  238.) 

To  the  Hon.  George  H.  Kennedy,  Justice  of  the  Supretne  Court  : 

In  obedience  to  the  writ  allowed  by  you  on  the  5th  day  of  February, 
1887,  and  on  the  9th  day  of  February,  1877,  served  upon  me,  and  which 
is  hereto  annexed,  I  make  the  following  return : 

I  have  in  my  custody  Tirzah  G.  Bigelow  named  in  said  writ,  and  in 
accordance  with  the  commands  of  said  writ  served  on  me,  I  produce 
her  in  person  before  your  honor  with  the  following  statement  as  to  the 
way  said  Tirzah  G.  Bigelow  came  into  my  family  and  my  reason  for 
desiring  to  keep  her,  the  said  Tirzah  G. 

The  said  Tirzah  G.  was  seven  years  old  September  26,  1886. 
She  is  the  only  living  child  of  the  marriage  of  Lyman  E.  Bigelow  with 
Malitta  Henderson,  December  19th,  1878.  Lyman  E.  Bigelow  died  in 
the  year  1884,  and  his  wife,  Malitta  Bigelow,  died  December  31,  1886. 
That  prior  to  the  death  of  said  Lyman  E.  Bigelow,  his  wife,  the  said 
Malitta  Bigelow,  owing  to  differences  between  them,  separated  from  him 
September  19th,  1883,  going  to  Watertown  to  reside  with  her  father, 
John  H.  Henderson,  bringing  with  her  the  said  Tirzah  G.,  who  re- 
mained with  the  said  Malitta,  her  mother,  to  the  day  of  her  death. 
The  facts  in  regard  to  the  separation  and  the  custody  of  the  child, 
Tirzah  G.,  are  set  forth  in  a  petition  to  the  Supreme  Court  verified  by 
Malitta  Bigelow,  October  13,  1885,  which  deponent  believes  to  be  true, 
presented  to  the  court  November  10,  1885,  and  the  affidavits  in  oppo- 
sition thereto  by  LaFayette  E.  Pruyne  and  John  C.  McCartin,  and  the 
order  made  by  Hon.  John  C.  Churchill  thereon,  and  entered  in  the 
clerk's  office  of  Jefferson  County,  N.  Y.,  November  10,  1885,  is  re- 
ferred to  as  part  of  this  return,  and  a  copy  of  the  same  is  hereto  an- 
nexed. That  prior  to  the  death  of  said  Lyman  E.  Bigelow  he  made  his 
last  will  and  testament,  which  has  been  admitted  to  probate  by  the 
surrogate  of  Jefferson  County,  a  copy  of  which  is  hereto  annexed  as 
forming  part  of  this  my  return  to  the  writ  aforesaid. 

And  I  further  state  on  information  and  belief  that  at  the  time  when 
said  Lyman  E.  Bigelow  so  made  his  will  he,  said  Bigelow,  entertained 
bitter  feeling  against  his  said  wife,  and  in  the  making  of  said  will  he 
was  largely  influenced  in  its  provisions  by  his  bitterness  of  feeling  against 
his  said  wife,  and  that  the  provision  therein  appointing  LaFayette  E, 
Pruyne  testamentary  guardian  of  the  said  Tirzah  G.  was  so  made,  not 
with  a  view  of  the  actual  benefit  of  said  Tirzah  G.,  but  on  the  contrary 
to  vex  and  harass  and  annoy  his  wife,  and  was  so  made  by  him  to  gratify 
his  revengeful  spirit. 


lOO  WRIT   OF   HABEAS   CORPUS. 


Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 


And  I  further  return  as  a  reason  why  said  Tirzah  G.  is  retained  by 
me  the  following  :  That  said  Malitta  Bigelow  for  two  years  or  more 
prior  to  her  death  had  the  consumption,  and  it  was  known  to  her  that 
she  could  not  long  survive,  and  her  great  anxiety  was  for  her  child,  the 
said  Tirzah  G.,  and  to  that  end  applied  to  deponent  and  his  wife,  and 
expressed  to  them  her  wish  that  on  her  death  deponent  and  his  wife 
would  take  the  said  Tirzah  G.  into  their  family  as  their  own  child,  care 
for,  educate,  and  bring  her  up  as  such,  and  the  said  Tirzah  was  by  her 
mother  told  that  after  her  death  she,  the  said  Tirzah  G.,  was  to  become 
and  be  an  inmate  of  the  family  of  the  deponent  and  his  wife,  and  to  that 
end  deponent  and  his  wife  for  at  least  a  year  and  a  half  cultivated  the 
acquaintance  of  the  said  Tirzah  G.  That  on  the  happening  of  the  said 
event — the  death  of  her  mother — and  the  taking  of  said  Tirzah  G. 
into  deponent's  family,  pursuant  to  the  request  of  her  mother,  she,  said 
Tirzah  G.,  would  not  be  going  among  strangers  to  her,  and  deponent 
and  his  wife  but  a  few  days  before  the  death  of  the  mother  of  said 
Tirzah  G.,  and  at  the  request  and  express  wish  of  said  Malitta  Bigelow, 
promised  her  in  response  to  her  dying  request  that  they  would  take,  care 
for,  and  bring  up  to  the  best  of  their  ability  the  said  Tirzah  G.,  and  after 
the  death  of  Mrs.  Bigelow  in  fulfilment  of  the  said  promise,  by  and 
with  the  consent  of  the  grandfather  of  said  Tirzah  G.,  deponent  and 
his  wife  took  said  Tirzah  G.  into  their  family,  where  she  has  ever  since 
remained  and  now  is. 

That  after  and  before  the  death  of  her  mother  the  said  Tirzah  G. 
knew  and  understood  that  it  was  the  wish  and  desire  of  her  mother  that 
she  should  go  into  the  family  of  deponent,  and  she  went  willingly  and 
is  contented,  and  happy,  and  expresses  a  desire  to  remain  in  the  family 
of  deponent,  having  apparently  become  strongly  attached  to  deponent 
and  his  wife,  as  deponent  and  wife  have  become  strongly  attached  to 
her.     Deponent  has  no  children  of  his  own. 

And  I  further  return  that,  as  I  am  informed  and  believe,  the  said  La- 
Fayette  Pruyne  recently  lost  his  wife,  has  no  child  or  children  of  his 
own,  and  proposes,  if  awarded  the  custody  of  said  Tirzah  G.,  to  put  her 
in  the  family  of  a  stranger  to  said  Tirzah  G.,  of  no  kin  to  her,  and  if 
such  be  done  deponent  believes  it  would  make  the  said  Tirzah  G.  un- 
happy and  discontented  and  would  not  be  for  the  best  interests  of  the 
said  child,  and  would  be  detrimental  to  the  health  of  said  Tirzah  G.,  as 
deponent  believes. 

And  I  further  respectfully  return  that  in  view  of  the  wish  and  desire 
often  and  earnestly  expressed  of  the  mother  of  said  Tirzah  G.,  and  of 
my  and  my  wife's  promises  to  her,  I  have  deemed  it  my  duty  to  act  in 
regard  to  the  interest  of  said  Tirzah  G.  as  I  have,  and  to  submit  this, 
my  return,  invoking  the  equitable  powers  of  the  court  to  do  in  relation 
thereto  what  to  it  seems  just  and  right.  Referring  to  and  adopting  the 
annexed  affidavit  of  John  H.  Henderson,  the  facts  alleged  therein  I  allege 
on  information  and  belief  to  be  true  as  forming  part  of  this  my  return. 
All  of  which  is  respectfully  submitted. 

Dated,  February  12th,  1887.  C.  H.  WALTS. 

(A(M  verification  hereto^ 


WRIT    OF    HABEAS    CORPUS.  lOI 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

Return.      (60  N.  Y.  559.) 

The  undersigned  warden  of  the  New  York  penitentiary  on  Blackwell's 
Island  respectfully  returns  and  shows,  that  he  received  the  annexed 
paper  marked  A  on  the  15th  day  of  December,  A.  D.  1874,  at  3  -.25 
P.  M.,  at  which  time  there  was  in  the  New  York  penitentiaiy  of  which 
he  is  warden  the  body  of  William  M.  Tweed,  whom  he  believes  to  be 
the  person  named  in  said  paper  marked  A,  and  who  was  so  there  under 
custody  as  being  the  person  named  in  the  original  paper,  of  which  the 
annexed  paper,  marked  B,  is  a  copy,  and  the  original  whereof  I  now 
produce,  and  which  I  received  on  the  29th  day  of  November,  A.  D. 
1873,  together  with  the  body  of  the  said  Tweed,  whom  I  have  had  and 
retained  ever  since  under  and  by  virtue  of  said  original  paper  or  war- 
rant of  commitment,  and  so  returning  the  undersigned  produces  the 
body  of  said  prisoner  in  obedience  to  the  command  expressed  in 
paper  A. 

JOSEPH  LISCOMB, 

Warden  of  the  Fenitejitiary, 


Return — Extradition.     (144  N.  Y.  699.) 

SUPREME  COURT.     GENERAL  TERM.     FIFTH  DEPARTMENT. 


The  People  ex  rel.  Charles  Young, 


James  C.  Stout,  as  agent  and  warden  of  State 
Prison  at  Auburn,  N.  Y. 

J 

The  defendant  for  his  return  to  the  writ  of  habeas  corpus  served 
upon  him  heretofore,  hereby  returns  that  pursuant  to  the  said  writ  he 
hereby  produces  the  said  Charles  Young  and  has  him  in  court  as  by 
said  writ  commanded,  and  the  said  original  writ  is  hereto  annexed. 

The  defendant  further  returns  upon  information  and  belief  that  on  or 
about  the  15th  day  of  June,  1893,  the  said  Charles  Young  was  indicted 
by  the  grand  jury  of  the  county  of  Monroe  for  the  crime  of  assault  in 
the  first  degree,  which  indictment  was  in  the  usual  form  containing 
three  counts,  one  count  for  assault  in  the  first  degree,  and  two  counts 
for  assault  in  the  second  degree ;  that  said  Charles  Young,  when 
defendant  had  no  knowledge  or  information,  fled  from  the  justice  of  the 
State  of  New  York,  and  was  subsequently  arrested  in  the  city  of  South- 
ampton, England,  but  said  Young  was  never  arrested  or  arraigned  upon 
said  indictment  until  after  he  was  extradited  from  England  as  hereinbe- 
fore mentioned. 

That  at  the  time  said  Charles  Young  fled  from  justice  of  the  State  of 
New  York  he  was  not  a  subject  of  her  Britannic  Majesty,  the  Queen 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  but  had  renounced 


102  WRIT   OF   HABEAS   CORPUS. 

Art.  4.     Return  Must  be  Made  to  Writ  and  Notice  of  Hearing. 

all  allegiance  to  her  Britannic  Majesty,  and  did  file  his  declaration  so- 
called  in  the  clerk's  office  of  the  County  of  Monroe,  N.  Y. 

That  the  application  for  the  extradition  of  said  Charles  Young  was 
first  made  to  the  Executive  Department  of  the  State  of  New  York,  and 
from  that  department  the  papers  on  which  said  application  was  based 
were  certified  to  the  Department  of  State  at  Washington,  where  they 
were  duly  authenticated  and  a  warrant  issued  by  the  President  of  the 
United  States,  and  the  papers  were  then  further  certified  as  a  proper 
case  for  extradition  by  the  Secretary  of  the  British  Legation  residing  at 
the  city  of  Washington,  D.  C,  and  duly  authenticated  as  evidence  of 
the  facts  therein  contained  in  any  country  or  territory  of  her  Britannic 
Majesty.  That  said  papers  so  authenticated  and  upon  which  the  ap- 
plication of  the  said  Charles  Young  was  based  contained,  among  other 
things,  the  original  of  the  warrant,  information,  depositions,  and  the 
indictment  upon  which  he  was  afterwards  tried,  which  depositions  were 
taken  as  provided  by  the  rules  and  practice  in  such  cases,  and  contained 
a  statement  of  the  facts  constituting  the  alleged  offence  for  which 
extradition  was  asked.  That  said  facts  set  forth  in  the  depositions 
accompanying  the  papers  were  the  same  as  those  upon  which  the 
indictment  was  found  and  which  were  afterwards  proven  at  the  trial  of 
the  said  Charles  Young. 

The  defendant  further  returns  upon  information  and  belief  :  that  the 
duly  authorized  agent  of  the  United  States,  Frank  I.  Hawley,  went  to 
England  with  the  papers  aforesaid  and  the  warrant  issued  by  the  Presi- 
dent of  the  United  States,  and  presented  said  papers  authenticated  as 
aforesaid  to  the  court  and  authorities  having  jurisdiction  over  such 
matters,  where  a  hearing  was  had  at  which  said  Charles  Young  was 
heard  and  represented  by  counsel,  and  it  was  there  adjudged  and 
determined  that  the  papers  presented  by  the  agent  of  the  United  States 
made  a  proper  case  in  the  opinion  of  the  said  tribunal  for  the  surrender 
of  said  Charles  Young,  and  it  was  then  and  there  adjudged  and  deter- 
mined that  said  Charles  Young  should  be  surrendered  to  the  agent  of 
the  United  States  to  be  by  said  agent  returned  to  the  United  States, 
there  to  be  tried  upon  the  facts  and  indictments  set  forth  in  said  papers. 
That  said  Charles  Young  was  returned  to  the  United  States  and  tried 
for  the  same  offence  or  offences  for  which  he  was  surrendered,  and  con- 
victed thereof,  to  wit,  the  crime  of  assault  in  the  second  degree  and  was 
for  the  felony  whereof  he  was  convicted  in  the  court  of  sessions  in  the 
county  of  Monroe  to  be  imprisoned  at  the  State  prison  at  Auburn,  N.  Y., 
for  a  term  of  four  years  and  five  months,  which  conviction  still  remains 
in  full  force  and  effect. 

Defendant  further  returns  upon  information  and  belief  that  the  prac- 
tice of  preparing  information  or  indictments  in  the  Kingdom  of  Great 
Ikitain  is  practically  the  same  as  it  is  in  the  State  of  New  York,  and 
that  it  is  the  practice  to  draw  an  indictment  containing  different  counts, 
some  being  in  a  lesser  degree  of  the  same  crime,  and  that  the  offence  in 
Great  Britain  is  the  same  as  assault  in  the  first  degree  in  the  State  of 
New  York,  and  that  the  power  of  the  jury  to  determine  the  degree  of 
crime  is  absolute  both  in  the  State  of  New  York  and  Great  Britain. 


WRIT   OF   HABEAS   CORPUS.  IO3 

Art.  5.     Proceedings  on  Return. 

Defendant  further  returns  that  the  said  Charles  Young  is  not  confined 
or  restrained  of  his  Uberty  in  violation  of  any  law  of  the  State  of  New 
York  or  of  the  United  States  or  of  the  Constitution  of  the  United  States 
or  in  violation  of  any  treaty  between  the  United  States  and  her  Brittannic 
Majesty. 

Defendant  further  returns  that  the  alleged  irregularity  in  the  convic- 
tion of  this  relator  has  been  called  to  the  attention  of  the  Department 
of  State  at  Washington,  and  to  the  attention  of  the  British  Lega- 
tion, and  that  they  have  refused  to  take  any  action  in  the  matter  or  to 
take  any  proceeding  for  the  release  of  the  said  Charles  Young,  after 
having  the  facts  in  his  case  laid  before  them. 

All  of  which  is  respectfully  returned. 

Dated,  October  12,  1894. 

JAMES  C.  STOUT, 

Warden. 

ARTICLE  V. 

Proceedings  on  Return.    §§  2031,  2032,  2033,  2034,  2036, 

2039,  2040. 

§  2031.  Proceedings  on  return  of  habeas  corpus. 

The  court  or  judge,  before  which  or  whom  the  prisoner  is  brought  by  virtue  of  a 
writ  of  habeas  corpus,  issued  as  prescribed  in  this  article,  must,  immediately  after  the 
return  of  the  writ,  examine  into  the  facts  alleged  in  the  return,  and  into  the  cause  of 
the  imprisonment  or  restraint  of  the  prisoner;  and  must  make  a  final  order  to  dis- 
charge him  therefrom,  if  no  lawful  cause  for  the  imprisonment  or  restraint  or  for  the 
continuance  thereof,  is  shown ;  whether  the  same  was  upon  a  commitment  for  an 
actual  or  supposed  criminal  matter  or  for  some  other  cause. 

g  2032.  When  prisoner  to  be  remanded. 

The  court  or  judge  must  forthwith  make  a  final  order  to  remand  the  prisoner,  if  it 
appears  that  he  is  detained  in  custody  for  either  of  the  following  causes,  and  that  the 
time  for  which  he  may  legally  l^e  so  detained  has  not  expired  : 

1.  By  virtue  of  a  mandate  issued  by  a  court  or  a  judge  of  the  United  States,  in  a 
case  where  such  courts  or  judges  have  exclusive  jurisdiction. 

2.  By  virtue  of  the  final  judgment  or  decree  of  a  competent  tribunal,  of  civil  or 
criminal  jurisdiction  ;  or  the  final  order  of  such  a  tribunal,  made  in  a  special  proceed- 
ing, instituted  for  any  cause,  except  to  punish  him  for  a  contempt ;  or  by  virtue  of  an 
execution  or  other  process,  issued  upon  such  a  judgment,  decree,  or  final  order. 

3.  For  a  criminal  contempt,  defined  in  §  8  of  this  act,  and  specially  and  plainly 
charged  in  a  commitment,  made  by  a  court,  officer,  or  body,  having  authority  to  com- 
mit for  the  contempt  so  charged. 

i^  2033.  When  to  be  discharged  in  civil  cases. 

If  it  appears  upon  the  return,  that  the  prisoner  is  in  custody,  by  virtue  of  a  man- 
date in  a  civil  cause,  he  can  be  discharged  only  in  one  of  the  following  cases: 

I.  Where  the  jurisdiction  of  the  court  which,  or  of  the  officer  who,  issued  the  man- 
date, has  been  exceeded,  either  as  to  matter,  place,  sum,  or  person. 


I04  WRIT    OF    HABEAS    CORPUS. 

Art.  5.     Proceedings  on  Return. 

2.  Where,  although  the  original  imprisonment  was  lawful,  yet  by  some  act,  omis- 
sion, or  event,  which  has  taken  place  afterwards,  the  prisoner  has  become  entitled  to 
be  discharged. 

3.  Where  the  mandate  is  defective  in  a  matter  of  substance  required  by  law,  ren- 
dering it  void. 

4.  Where  the  mandate,  although  in  proper  form,  was  issued  in  a  case  not  allowed 
by  law. 

5.  Where  the  person,  having  the  custody  of  the  prisoner  under  the  mandate,  is  not 
the  person  empowered  by  law  to  detain  him. 

6.  Where  the  mandate  is  not  authorized  by  a  judgment,  decree,  or  order  of  a  court, 
or  by  a  provision  of  law. 

2  R.  S.  563,  §  41. 

§  2034.  The  last  section  qualified. 

But  a  court  or  judge,  upon  the  return  of  a  writ  issued  as  prescribed  in  this  article, 
shall  not  inquire  into  the  legality  or  justice  of  any  mandate,  judgment,  decree,  or  final 
order,  specified  in  the  last  section  but  one,  except  as  therein  stated. 

§  2036.  Id. ;  when  prisoner  may  be  committed  to  another  ofllcer. 

Where  a  prisoner  is  not  entitled  to  his  discharge,  and  is  not  bailed,  he  must  be 
remanded  to  the  custody,  or  placed  under  the  restraint,  from  which  he  was  taken,  unless 
the  person,  in  whose  custody,  or  under  whose  restraint  he  was,  is  not  lawfully  enti- 
tled thereto  ;  in  which  case,  the  order  remanding  him  must  commit  him  to  the  cus- 
tody of  the  officer  or  person  so  entitled. 

§  2039.  Prisoner  may  controvert  return;  proofs  thereupon. 

A  prisoner,  produced  upon  the  return  of  a  writ  of  habeas  corpus  may,  under  oath, 
deny  any  material  allegation  of  the  return,  or  make  any  allegation  of  fact,  showing 
either  that  his  imprisonment  or  detention  is  unlawful,  or  that  he  is  entitled  to  his  dis- 
charge. Thereupon  the  court  or  judge  must  proceed  in  a  summary  way  to  hear  the 
evidence,  produced  in  support  of  or  against  the  imprisonment  or  detention,  and  to 
dispose  of  the  prisoner  as  the  justice  of  the  case  requires. 

§  2040.  Proceedings,  etc.,  of  prisoner. 

Where  the  return  to  a  writ  of  habeas  corpus  states  that  the  prisoner  is  so  sick  or 
infirm,  that  the  production  of  him  would  endanger  his  life  or  health,  and  the  return 
is  otherwise  sufficient,  the  court  or  judge,  if  satisfied  of  the  truth  of  that  statement, 
must  decide  upon  the  return,  and  dispose  of  the  matter,  as  if  a  writ  of  certiorari  had 
been  issued. 

If  the  restraint  is  not  alleged  to  be  by  virtue  of  legal  process 
the  truth  of  all  matters  returned  may  be  inquired  into.  People 
V.  Cassclls,  5  Hill,  164.  Material  facts  stated  in  return  not  denied 
by  the  party  brought  up  must  be  taken  to  be  true.  People  ex 
rel.  Evans  v.  McEiven,  67  How.  105.  The  facts  contained  in  the 
return  mu.st  be  first  inquired  into.  Squire's  Case,  12  Abb.  38. 
Illegal  restraint  must  be  either  proved  or  admitted.  People  v. 
Cooper,  I  Ducr,  709.  If  no  question  of  fact  is  raised  the  question 
is  one  of  law  as  upon  a  demurrer.     Bennac  v.  People,  4  Barb.  31 ; 


WRIT   OF   HABEAS   CORPUS.  10$ 

Art.  5.     Proceedings  on  Return. 


Matter  of  Decosta,  i  Park.  129.  See  3  Hill,  658,  note.  The  ex- 
istence and  validity  of  process  under  which  a  prisoner  is  held  are 
the  proper  subjects  of  inquiry.  Matter  of  Lagrave,  45  How.  301. 
It  is  only  the  facts  necessarily  involved  that  will  be  determined. 
People  V.  Wilcox,  22  Barb.  186. 

Precedent  for  Answer  Traversing  Return. 


In  the  Matter  of  the  AppHcation  of   Richard  I     g  j^^^^   ^g^ 
Stokes  for  a  Writ  of  Habeas  Corpus.  j    -^  >  -     • 

. J 

The  answer  of  Richard  Stokes  to  the  return  of  the  writ  of  habeas 
corpus  heretofore  made,  and  filed  herein  by  George  Young,  sheriff  of 
Ulster  County : 

The  said  Richard  Stokes  denies  that  the  commitment  returned  by  the 
said  sheriff  is  a  valid  commitment,  and  shows  that  the  said  commitment 
is  invalid,  null,  and  void,  for  the  reason  that  the  justice  alleged  to  have 
made  the  same  had  no  jurisdiction  to  try  or  sentence  the  said  Richard 
Stokes ;  and  further,  that  the  said  commitment  was  not  in  fact  signed 
by  said  justice,  and  the  signature  thereto  is  not  his  act  or  deed,  nor 
authorized  by  him.  JOHN  F.   CLOONAN, 

Attorney  for  Petitioner. 

{Add  verification  as  to  pleading.) 

Traverse. 

NEW  YORK  SUPREME  COURT. 


The  People  ex  rel.  Morris  Frey, 

agst. 

The  Warden  of  the  County  Jail  of  New  York 
County,  etc. 


\  100  N.  Y.  20. 


The  traverse  of  Martin  Frey  to  the  return  made  to  his  petition,  etc., 
respectfully  shows : 

1.  Your  petitioner  denies  the  statement  made  in  said  return  that  your 
petitioner's  alleged  enlistment  was  legal  and  in  proper  form,  and  that 
your  petitioner  was  sworn  in  accordance  with  the  Military  Code. 

2.  Your  petitioner  further  denies  he  was  duly  summoned  before  said 
court  martial,  and  denies  that  he  had  any  hearing  whatsoever.  That 
said  court  martial  then  had  not  and  has  not  now  any  jurisdiction  what- 
ever over  your  petitioner. 

3.  Your  petitioner  further  denies  that  he  was  duly  notified  to  perform 
the  duty  for  which  the  alleged  neglect  of  which  he  was  notified  as  a  de- 
linquent as  alleged  in  said  warrant  referred  to  in  the  return  of  Captain 


106  WRIT   OF   HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

John  W.  Fleck.  On  the  contrary,  your  petitioner  alleges  that  whatever 
orders  were  sent  to  petitioner  to  attend  drills,  the  same  were  not  served 
as  petitioner  is  informed  and  believes  in  accordance  with  the  require- 
ments of  the  Military  Code,  which  fact  was  at  the  time  well  known  to 
the  captain,  John  W.  Fleck,  president  of  the  aforesaid  court  martial, 
and  which  your  petitioner  will  be  able  to  prove  on  the  proper  trial  of 
the  issues  herein. 

4.  Your  petitioner,  further  traversing  said  return,  alleges  that  prior  to 
his  said  enlistment  in  said  regiment  your  petitioner  was  induced  to  join 
the  same  on  the  false  representations  made  by  one  of  the  officers  thereof ; 
that  the  said  regiment  was  not  governed  by  any  law  governing  regular 
military  organizations  of  this  State ,  that  it  was  merely  a  social  body  of 
persons  joined  together  for  social  advancement,  and  that  in  case  of  sick- 
ness your  petitioner  would  derive  a  weekly  benefit  of  $10  during  his 
sickness.  That  petitioner,  relying  upon  the  representations  so  made  to 
him  as  aforesaid,  and  believing  them  to  be  true,  consented  to  become 
a  member.  That  thereupon  the  petitioner  became  admitted,  without 
the  knowledge  or  consent  of  his  father,  and  without  being  asked  to 
obtain  said  consent. 

That  your  petitioner  was  asked  to  sign  a  paper  in  petitioner's  name 
and  in  the  name  of  his  father,  which  petitioner  did  without  knowing  the 
contents  thereof,  and  which  were  kept  concealed  from  petitioner's  view. 
That  said  paper  was  not  signed  by  petitioner  at  the  headquarters  of  said 
regiment,  but  at  a  tailor  shop  in  Second  Avenue,  near  84th  Street,  New 
York  City. 

5.  Your  petitioner  begs  leave  to  refer  to  the  affidavit  of  Samuel  Frey, 
hereto  annexed,  and  which  is  made  part  of  this  traverse. 

Wherefore,  your  petitioner  prays  that  he  may  be  discharged  from 
imprisonment  as  prayed  for  in  said  petition. 

MORRIS  FREY. 
(^Add  verification  hereto.) 

Traverse. 

SUPREME  COURT. 


The  People  on    the  relation  of  LaFayette    E. 
Pruyne, 


agst. 
Charles  H.  Walts. 


122  N.  Y.  238. 


The  said  relator,  LaFayette  E.  Pruyne,  traversing  the  return  of  the 
writ  of  habeas  corpus  made  herein,  denies  any  knowledge  or  information 
sufficient  to  form  a  belief  as  to  whether  said  Lyman  Bigelow  was 
largely  influenced  in  the  provisions  of  his  said  last  will  by  bitterness  of 
feeling  against  his  wife,  or  whether  the  provisions  thereof  appointing 
said  relator  testamentary  guardian  of  said  infant  was  not  made  with  a 
view  to  the  actual   benefit   of  said  Tirzah  G.  Bigelow,  but  on  the  con- 


WRIT   OF   HABEAS   CORPUS.  lO/ 

Art.  5.     Proceedings  on  Return. 

trary  to  harass  and  annoy  his  wife,  but  was  so  made  by  him  to  justify 
his  revengeful  spirit ;  he  denies  any  information  or  knowledge  sufficient 
to  form  a  belief  that  said  Malitta  Bigelow  has  anxiety  for  said  child  or 
whether  to  that  end  applied  to  said  respondent  and  his  wife  and  ex- 
pressed to  them  her  wish  that  on  her  death  said  respondent  and  his 
wife  would  take  said  Tirzah  G.  Bigelow  into  their  family  as  their  own 
child,  care  for,  educate,  and  bring  her  up  as  such ;  or  whether  said 
Tirzah  G.  was  by  her  said  mother  told  that,  after  her  death,  she,  said 
Tirzah  G.,  was  to  become  and  be  an  inmate  of  the  family  of  said  re- 
spondent and  his  wife,  or  whether  respondent  and  his  wife  after,  at  least 
for  a  year  and  a  half,  cultivated  the  acquaintance  of  said  Tirzah  G.,  so 
that,  on  the  happening  of  the  death  of  her  mother  and  the  taking  of  her 
into  respondent's  family  pursuant  to  said  request  of  her  mother,  said 
Tirzah  G.  would  not  be  going  among  strangers  to  her ;  or  whether  the 
respondent  and  his  wife  a  few  days  before  the  death  of  the  mother  of 
said  Tirzah  G.  Bigelow,  and  at  the  earnest  expressed  wish  of  said 
Malitta  Bigelow,  promised  her  in  response  to  her  dying  request  that 
they  would  take  care  of  and  bring  up  to  the  best  of  their  ability  the 
said  Tirzah  G. ;  or  whether,  after  the  death  of  said  Malitta  Bigelow  in 
fulfilment  of  said  promise,  being  with  the  consent  of  the  grandfather  of 
said  Tirzah  G.,  respondent  and  his  wife  took  said  Tirzah  G.  into  their 
family,  or  whether  after  and  before  the  death  of  her  mother  the  said 
Tirzah  G.  knew  and  understood  that  it  was  the  wish  and  desire  of  her 
mother  that  she  should  go  into  respondent's  family,  or  whether  she  went 
willingly  and  is  contented  and  happy  and  expressed  a  desire  to  remain 
in  the  family  of  respondent,  having  apparently  become  strongly  attached 
to  respondent  and  his  wife,  or  whether  respondent  and  his  wife  have 
become  strongly  attached  to  her.  He  denies  that  he  proposes,  if 
awarded  the  custody  of  said  Tirzah  G.,  to  put  her  in  the  family  of  a 
stranger,  and  he  denies  that  to  put  said  Tirzah  G.  into  his  custody  or 
of  those  whom  he  may  procure  to  take  the  more  immediate  charge  of 
her  would  make  the  said  Tirzah  G.  unhappy  and  discontented,  or  that 
it  would  not  be  for  the  best  interest  of  said  child  or  detrimental  to  her 
health.  He  denies  that  the  said  Lyman  E.  Bigelow  during  his  last 
sickness  expressed  to  the  said  Pruyne  that  his  wife  and  child  be  sent 
for  with  a  view  of  reconciliation  between  them,  or  that  said  Pruyne  ever 
refused  or  omitted  to  communicate  any  request  made  by  said  Bigelow ; 
and  he  denies  that  it  would  be  injurious  to  said  Tirzah  G.  to  remove 
her  from  her  present  home,  and  that  she  would  be  discontented  and 
unhappy,  or  that  her  removal  would  seriously  injure  her  health  and 
happiness.  He  denies  that  the  interests  of  said  Pruyne  under  the  will 
of  said  Bigelow  are  antagonistic  to  said  Tirzah  G.,  or  that  it  would  be 
tanwise  or  unsafe  and  not  for  the  best  interest  of  said  Tirzah  G.,  and 
for  the  said  Tirzah  G.  to  be  committed  to  the  care  and  custody  of  said 
Pruyne.  And  he  denies  that  he  is  not  a  proper  person  to  have  such 
care  and  custody. 

He  denies  any  information  or  knowledge  sufficient  to  form  a  belief 
whether  said  mother  selected  said  respondent  and  his  wife  as  the  per- 
sons whom  she  desired  to  take  charge  of,  have  the   custody  of,  or  take 


I08  WRIT   OF   HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

care,  control,  management,  and  education  of  said  Tirzah  G.  after  her 
death,  and  to  carry  out  her  desires  and  wish  she  secured  from  said 
respondent  and  his  wife  the  promise  that  they  would  take  the  care  of 
said  Tirzah  G.,  or  whether  said  wish  and  desire  was  often  stated  and 
expressed  by  said  Malitta  a  few  hours  before  her  death,  or  when  she 
was  dying ;  or  whether  said  Malitta  informed  said  Tirzah  G.  at  any 
time  that  she  would  be  the  child  of  respondent  and  his  wife,  or  whether 
said  information  by  the  mother  to  the  child  was  frequent  during  the 
two  years  last  past ;  or  whether  said  Tirzah  G.  understood  or  became 
reconciled  to  such  disposition  of  her  upon  the  death  of  her  mother,  or 
during  the  time  she  has  become  acquainted  with  respondent  and  his 
wife,  or  seem  to  have  formed  a  great  liking  and  attachment  for  them  ; 
or  whether  after  the  death  of  her  said  mother  said  Tirzah  G.  willingly 
went  to  live  with  respondent ;  or  whether  she  is  contented  and  happy 
and  expressed  a  wish  that  she  shall  always  remain  there,  or  whether  all 
of  the  relatives  of  the  said  Tirzah  G.  are  desirous  that  she  shall  remain 
where  she  is ;  or  whether  said  Tirzah  G.  has  expressed  any  dislike  or 
fear  of  said  relator.  LaFAYETTE  E.  PRUYNE. 

(Add  verification  hereto.^ 

Answer  to  Return. 

COURT  OF  OYER  AND  TERMINER,  CITY  AND  COUNTY  OF  NEW  YORK. 


The    People    on  the    relation    of    William    M. 
Tweed, 


Joseph  L.  Liscomb. 


60  N.  Y.  559. 


The  answer  of  William  Tweed  to   the   return   of  Joseph  L.  Liscomb 
made  to  the  writ  of  habeas  corpus  in  this  case : 
Said  William  M.  Tweed  says  and  avers  : 

1.  That  there  is  no  record  of  a  judgment  of  any  court  of  competent 
jurisdiction  which  in  terms  authorizes  or  purports  to  authorize  the  issu- 
ing of  the  pretended  warrant  or  commitment,  a  copy  whereof  is  annexed 
to  said  return. 

2.  That  there  is  no  record  of  a  judgment  of  any  court  of  competent 
jurisdiction  which  in  law  or  fact  did  or  does  authorize  the  issuing  of 
said  warrant  of  commitment. 

3.  That  the  court  from  which  said  warrant  of  commitment  an- 
nexed to  the  said  return  purports  to  have  been  issued  had  no  jurisdic- 
tion nor  power  to  try  the  alleged  misdemeanors  mentioned  in  the  said 
warrant  of  committment. 

4.  That  the  pretended  jury  by  whom  this  relator  is  alleged  under 
said  warrant  to  have  been  tried  and  convicted  was  not  impanelled  ac- 
cording to  the  law  of  the  land,  was  not  a  lawful  jury  and  had  no  juris- 
diction or  power  to  try  the  said  supposed  offences  or  to  render  any 
verdict  respecting  the  same. 


WRIT   OF   HABEAS   CORPUS.  IO9 

Art.  5.     Proceedings  on  Return. 

5.  That  the  alleged  judgment  in  execution  of  which  the  said  pre- 
tended warrant  of  commitment  was  issued  was  and  is  absolutely  void 
for  want  of  jurisdiction  to  render  the  same. 

6.  That  the  pretended  trial  and  the  pretended  conviction  were  for 
one  misdemeanor  only,  for  which  no  imprisonment  for  more  than  one 
year  and  no  fine  greater  than  $250  could  be  pronounced  or  adjudged 
against  him,  although  for  such  imprisonment  and  conviction  the  relator 
has  already  been  imprisoned  for  more  than  one  year  under  said  pre- 
tended warrant  and  has  paid  a  fine  of  $250. 

7.  That  if  the  said  one  year's  imprisonment  is  lawful,  which  the 
relator  denies,  each  and  every  pretended  sentence  of  said  court  whereby 
said  relator  was  condemned  to  any  further  or  other  imprisonment  or  to 
pay  any  further  or  other  fine  was  and  is  void. 

8.  That  the  term  of  the  relator's  imprisonment  under  the  said 
pretended  warrant  of  commitment  has  expired. 

9.  That  the  said  pretended  warrant  of  commitment  does  not  con- 
form to  any  judgment  or  pretended  judgment  of  any  court  and  is  not 
warranted  or  authorized  by  the  same. 

10.  That  the  said  warrant  of  commitment  is  void  for  want  of  a 
specification  of  the  offence  or  offences  whereof  it  is  pretended  that  the 
relator  was  convicted. 

WILLIAM  M.  TWEED. 
{Add  verification  hereto^ 

Answer  to  Return. 

SUPREME  COURT.     GENERAL  TERM.     FIFTH  DEPARTMENT. 

1 

The  People  ex  rel.  Charles  Young, 

a^st. 

James  C.  Stout,  Agent  and  Warden  of  State 
Prison  at  Auburn,  N.  Y. 


144  N.  Y.  699. 


The  relator,  Charles  Young,  traversing  the  return  of  James  C.  Stout, 
Esq.,  agent  and  warden  of  the  State  prison  at  Auburn,  N.  Y.,  states 
that  the  statements  and  allegations  made  and  contained  in  the  petition 
for  the  writ  of  habeas  corpus  herein  presented  to  this  court  was  and  is 
true,  and  this  relator  hereby  reiterates  and  reaffirms  the  same  as  part  of 
his  answer  to  said  return  herein. 

The  relator  further  says  that  when  he  was  arraigned  for  trial  in 
Monroe  County  court  of  sessions  he  objected  to  the  form  of  the  indict- 
ment and  also  objected  to  being  put  on  trial  for  any  crime  other  than 
''  assault  with  intent  to  commit  murder,"  being  the  crime  for  which  he 
was  extradited  herein  from  England,  and  that  he  therefore  asked  that 
he  be  tried  only  upon  that  charge,  and  that  the  said  court  thereupon  in 
all  things  overruled  and  denied  this  relator's  objections,  and  also 
further,  when  the  grand  jury  rendered   its  verdict  of   "  assault   in  the 


no  WRIT   OF   HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

second  degree"  on  the  loth  day  of  April,  1894,  this  relator  again  ex- 
cepted to  the  verdict  and  moved  that  the  same  be  set  aside  on  the 
grounds  that  the  offence  for  which  he  had  been  found  guilty  was  not 
one  that  was  extraditable  under  the  treaty  between  the  United  States 
and  Great  Britain,  and  the  relator's  objections  and  motion  were  then 
again  in  all  respects  denied  and  overruled  by  said  court. 

That  therefore  said  court  of  sessions  had  no  jurisdiction  of  the  per- 
son of  this  relator  for  the  trial  of  said  offence  of  "  assault  in  the  second 
degree,"  and  for  which  he  was  illegally  convicted,  and  said  conviction 
was  and  is  illegal  and  without  jurisdiction  and  said  court  had  no  juris- 
diction to  pronounce  sentence  thereon. 

Wherefore,  this  relator  demands  that  he  be  discharged  from  further 
imprisonment  and  be  given  a  reasonable  time  to  return  to  England  from 
which  he  was  extradited,  according  to  the  provisions  of  the  supplemental 
treaty  entered  into  between  the  two  countries  in  1889. 

CHARLES  YOUNG, 

Relator. 

{Add  verification  hereto^ 

The  court  must  under  some  state  of  facts  have  had  jurisdiction 
to  render  the  judgment  given  in  order  to  prevent  inquiry,  and 
discharge  of  prisoner  on  habeas.  People  exrel.  Tzveed  v.  Liscomb, 
60  N.  Y.  559.  This  must  be  determined  by  the  court  on  the 
hearing.  People  v.  Bowe,  58  How.  393  ;  People  v.  Oyer  and  Ter- 
miner, 14  Hun,  21.  Pardon  is  ground  of  discharge.  People  v. 
Edymoin,  8  How.  478.  And  the  court  cannot  inquire  whether 
the  proceedings  to  obtain  it  were  regular.  The  record  on  sum- 
mary conviction  may  be  examined.  Re  Siveatman,  i  Cow.  144  ;  Re 
Phillips,  I  Park.  Cr.  95;  People  v.  Martin,  id.  187.  P'inal  process 
is  held  to  be  reviewable  when  there  is  in  fact  no  judgment  or  de- 
cree, or  where  the  judgment  or  conviction  is  void.  Ex  parte 
Beatty,  12  Wend.  229;  People  v.  Raivson,  61  Barb.  619;  People  v. 
Willett,  15  How.  210;  Matter  of  Divine,  ii  Abb.  90;  S.  C.  21 
How.  80.  The  competency  of  the  tribunal  to  render  a  judgment 
or  decree,  under  which  a  person  is  held  in  custody,  and  the  juris- 
diction over  him  as  to  either  matter,  place,  sum,  or  person,  is  the 
subject  of  inquiry  before  a  judge  or  court  issuing  the  writ,  and  the 
court  is  expressly  required  to  institute  an  inquiry  into  the  cause 
of  the  detention  and  to  discharge  the  prisoner  when  there  is  a 
lack  of  jurisdiction  on  the  part  of  the  tribunal,  making  an  order 
for  his  detention.  People  ex  rel.  v.  Warden,  etc.,  lOO  N.  Y.  20, 
citing  Tweed  V.  Liscomb,  60  id.  559,  and  Ferguson  v.  Crawford, 
70  id.  257. 


WRIT   OF   HABEAS   CORPUS.  Ill 

Art.  5.     Proceedings  on  Return. 

The  Code  has  made  changes  in  the  rule  as  to  contempt  on 
habeas  corpus,  and  §§  2016  and  2032  must  be  read  together  and 
the  authorities  applied  to  the  changed  statute. 

The  revisers,  in  their  note  to  §  2016,  as  originally  reported,  give 
their  understanding  of  the  Code  to  be  that  the  writ  may  now 
issue,  even  though  the  commitment  was  for  criminal  contempt, 
leaving  the  determination  of  the  rights  of  the  prisoner  to  be 
governed  by  the  proof  under  §  2032,  and  in  case  it  is  a  civil  con- 
tempt, he  may  be  discharged;  if  a  criminal  contempt,  he  must 
be  remanded.  The  cases  under  the  Revised  Statutes  will  be 
found  collated  in  Bliss'  Annotated  Code,  under  §  2032.  In 
order  to  entitle  one  to  discharge  the  process  must  be  void, 
not  voidable ;  defects  which  may  be  cured  by  amendment  make 
process  only  voidable.  People  ex  rel.  Utley  v.  Seat 011,  25  Hun, 
305 ;  Benedict  v.  Thayer,  20  id.  547.  Section  2034  does  not 
prevent  a  determination  as  to  whether  the  court  rendering  the 
judgment  had  jurisdiction.  People  ex  rel.  Tweed  v.  Liscowb,  60 
N.  Y.  760  ;  People  ex  rel.  v.  lVarde?t,  etc.,  lOO  id.  20.  But  the 
court  is  not  at  liberty  to  go  behind  the  conviction  and  re-try 
the  question  of  fact  upon  which  it  was  made.  People  v. 
Catholic  Protectory,  38  Hun,  127,  afifirmed  on  another  point, 
loi  N.  Y.  195. 

A  reference  cannot  be  ordered.  Matter  of  Smith,  i  Crary's 
Sp.  Proc.  387,  as  decision  of  Special  Term  by  Judge  Davies, 
it  does  not  appear  to  have  been  reported.  It  is  said  by  Mr. 
Hurd  (p.  323)  that  affidavits  may  be  read  on  the  hearing,  if  prop- 
erly taken  and  authenticated,  but  that  their  reception  is  a  matter 
of  discretion,  and  to  be  received  cautiously  ;  and  in  criminal  cases 
only  when  the  attendance  of  witnesses  cannot  be  obtained.  This 
view  is  to  some  extent  sustained.  Matter  of  Heyzvard,  i  Sandf. 
702.  The  burden  of  proving  defects  in  process  is  on  the  pris- 
oner. Id.  And  if  the  material  facts  in  the  return  are  not  denied 
they  will  be  taken  as  true,  i  Park.  Cr.  129.  The  principles  laid 
down  in  Tweed  v.  Liscomb,  60  N.  Y.  559,  and  People  ex  rel.  v. 
Warden,  etc.,  lOO  N.  Y.  20,  supra,  will  govern  as  to  what  can  be 
inquired  into  and  tried  on  this  hearing,  and  dispose  of  many 
questions  discussed  in  earlier  cases,  which  are  there  cited. 

The  only  inquiry  that  a  county  judge  can  make  upon  the  re- 
turn to  a  writ  of  certiorari  is,  as  to  whether  it  appears  from  the 
judgment  itself  that  the  inferior  court  had  jurisdiction.     People 


112  WRIT   OF   HABEAS   CORPUS. 


Art.  5.     Proceedings  on  Return. 


ex  rcl.  Ryan  v.  Webster,  86  Hun,  73.  Where  it  appears  upon  the 
return  to  the  writ,  that  a  person  is  detained  in  custody  by 
virtue  of  the  final  judgment  or  decree  of  a  competent  tribunal, 
it  is  the  duty  of  the  judge  to  make  an  order  remanding  the 
prisoner  to  custody.  People  ex  rel.  McLoughlin  v.  Wilson,  88 
Hun,  258,  68  St.  Rep.  535,  34  Supp.  734,  citing  People  ex 
rel.  Danziger  v.  Protestant  Episcopal  House  of  Mercy ^  128 
N.  Y.  185  ;  People  ex  rel.  Lotz  v.  Norton,  76  Hun,  7  ;  Matter  of 
Donohue,  i  Abb.  N.  C.  lo;  People  ex  rel.  Phelps  v.  Fancher,  2 
Hun,  226. 

Where  the  traverse  to  a  writ  of  habeas  corpus  neither  disputes 
any  fact  upon  which  the  jurisdiction  of  the  magistrate  was  pred- 
icated, nor  alleges  extrinsic  facts  tending  to  show  a  want  of 
jurisdiction  on  his  part,  to  render  the  judgment,  it  is  demurrable. 
Peo.  ex  rel.  Lazar7is\.  House  of  Mercy,  23  App.  Div.  383,48  Supp, 
217,  82  St.  Rep.  217.  A  person  held  under  the  sentence  of  im- 
prisonment for  non-payment  of  a  fine  imposed  for  a  violation  of 
the  Liquor  Tax  Law  may  be  released  on  a  writ  of  habeas  corpus, 
as  the  court  has  no  jurisdiction  to  impose  such  a  sentence.  Peo. 
V.  Stock,  26  App.  564,  50  N.  Y.  Supp.  483,  84  St.  Rep.  483. 

A  certificate  of  conviction  which  states  that  defendant  was 
before  the  recorder  on  a  certain  charge  of  petit  larceny  is  sufifi- 
cient,  although  it  does  not  specify  the  goods  taken  or  state  from 
whom  they  were  taken.  Peo.  ex  rel.  Hunt  v.  Markell,  22  Misc. 
607,  50  Supp.  766,  84  St.  Rep.  ^66.  Where  there  was  sufificient 
evidence  before  the  committing  magistrate  to  require  him  to 
decide  whether  the  defendant  had  committed  an  offence,  his 
determination  thereon  cannot  be  reversed  and  the  defendant 
discharged  on  habeas  corpus.  Peo.  ex  rel.  Peterson  v.  McFarline, 
25  App.  630,  49  Supp.  599,  83  St.  Rep.  599.  A  judgment 
debtor  who  is  on  the  jail  limits  is  not  entitled  to  be  discharged 
on  habeas  corpus,  although  the  judgment  did  not  authorize  an 
execution  against  his  person.  Peo.  ex  rel.  Smith  v.  Biggart,  25 
App.  20,  48  Supp.  1030,  82  St.  Rep.  1030.  A  certificate  of  con- 
viction  which  contains  no  mandate  to  the  sheriff  to  receive  and 
confine  the  prisoner,  and  which  is  not  certified  by  the  magis- 
trate or  county  clerk,  is  insufficient  to  authorize  his  detention. 
Peo.  ex  rel.  Snider  v.  Whitney,  22  Misc.  226,  49  Supp.  591,  83  St. 
Rep.  591. 

Where  a  sheriff  relics  on  a  judgment  of  conviction  as  author- 


WRIT   OF   HABEAS   CORPUS.  II3 

Art.   5.     Proceedings  on  Return. 

ity  for  detaining  a  prisoner,  he  is  required  to  establish  the  fact  of 
such  judgment.  Pco.  ex  re/.  Snider  v.  Whitney,  22  Misc.  226,  49 
N.  E.  Rep.  591,  83  St.  Rep.  591.  Upon  the  return  to  a  writ  of 
habeas  corpus,  the  court  may  inquire  into  the  constitutionality 
of  the  statute  under  which  the  judgment  was  rendered,  for  it  is 
without  authority,  and  not  the  judgment  of  a  competent  trib- 
unal, if  based  upon  an  unconstitutional  statute.  Matter  of 
Rentier,  7  Supp.  145.  It  is  the  duty  of  the  judge,  upon  hearing 
a  return  to  a  writ  of  habeas  corpus,  to  inquire  into  the  jurisdiction 
of  the  tribunal  which  rendered  the  judgment  or  decree,  and  to 
discharge  the  prisoner  where  it  appears  there  was  a  lack  of 
jurisdiction  over  the  person  or  subject-matter.  People  ex  reL 
Saboldw.  Webb,  5  Supp.  835,  23  St.  Rep.  335.  It  is  the  duty 
of  a  court  or  judge  issuing  the  writ  upon  a  hearing  on  return 
thereto,  where  it  appears  the  prisoner  is  held  in  custody 
under  a  judgment  or  decree,  to  inquire  into  the  jurisdiction 
of  the  tribunal  to  render  the  judgment  or  decree,  and  to  dis- 
charge the  prisoner  where  it  appears  there  was  a  lack  of  juris- 
diction over  the  person  or  subject-matter.  Courts  martial 
and  delinquency  courts  being  courts  of  limited  jurisdiction, 
judgments  pronounced  by  them  when  questioned  in  any 
collateral  proceeding  are  of  no  force  or  effect  as  establishing  a 
right  to  enforce  them  unless  accompanied  by  proof  of  the  juris- 
dictional facts  upon  which  the  authority  of  the  court  to  render 
them  depends.  The  recital  of  jurisdictional  facts  in  such  case  is 
not  evtn  prima  facie  evidence  of  their  existence.  People  ex  rel. 
Frey  v.  The  Warden,  etc.,  100  N.  Y.  20. 

Upon  a  return  to  a  writ  of  habeas  corpus,  where  it  is  shown  that 
the  relator  has  been  sentenced,  and  is  detained  under  the  process 
of  a  court  of  competent  jurisdiction,  it  is  the  duty  of  the  court 
to  remand  him,  unless  it  be  shown  the  trial  court  was  with- 
out jurisdiction  to  pass  the  sentence.  People  ex  rel.  Kemler 
V.  Durston,  119  N.  Y.  570,  affirming  55  Hun,  64.  A  person 
xinder  sentence  of  fine  and  imprisonment  imposed  by  a  court  of 
sessions  cannot  be  discharged  on  habeas  corpus  on  the  ground 
that  the  court  of  sessions  exceeded  its  powers  in  imposing  the 
fine  where  the  court  had  power  to  imprison  but  the  term  of 
imprisonment  had  not  expired.  People  ex  rel.  O'Brien  v.  Jl^ood- 
worth,  78  Hun,  586,  29  Supp.  211,  60  St.  Rep.  787.  Where 
it    appears    that    the    relator   is   detained  for  a    criminal  con- 


114  WRIT    OF    HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

tempt  specially  and  plainly  charged  in  the  commitment  made 
by  a  court  having  authority  to  commit  for  contempt,  so  charged, 
he  must  be  remanded.  People  ex  rel.  Taylor  v.  Seaman,  8  Misc. 
152,  59  St.  Rep.  462,  29  Supp.  329. 

On  the  filing  of  a  traverse  to  a  return  to  a  writ  of  habeas 
corpus,  the  return  is  to  be  assumed  to  be  true,  except  in  so  far  as 
its  material  allegation  is  controverted  by  the  traverse.  The 
provision  requiring  the  court  or  judge  before  vi^hom  the  prisoner 
is  brought  to  proceed  in  a  summary  way  to  hear  the  evidence 
has  no  application  unless  the  material  allegations  showing  juris- 
diction are  controverted  by  a  proper  traverse.  People  ex  rel. 
Danziger  v.  P.  E.  House  of  Mercy,  128  N.  Y.  180,  40  St.  Rep.  160, 
reversing  59  Hun,  624,  and  13  Supp.  401.  In  People  ex  rel.  Ktihn 
V.  P.  E.  House  of  Mercy,  133  N.  Y.  208,  on  habeas  corpus,  it  was 
held  that  the  commitment  of  a  female  to  a  reformatory  institu- 
tion by  a  police  justice  had  all  the  force  and  efTect  of  a  final 
judgment  of  a  court  of  competent  jurisdiction  under  the  pro- 
visions of  the  Code  regulating  the  procedure  in  habeas  corpus 
cases.  YxozQ.&6\n^hy  habeas  corpus  is  summary  in  its  nature,  and 
denials  of  the  allegations  of  the  return  made  to  the  writ  may  be 
made  in  an  informal  manner  by  affidavits,  or  even  orally.  Where 
an  issue  was  raised  by  a  traverse  and  by  afifidavit  as  to  the  fitness 
of  the  present  custodian  of  the  child,  the  court  may  properly  send 
the  question  to  a  referee  with  directions  to  take  testimony  and 
report  thereon.  People  ex  rel.  Keatorv.  Moss,  6  App.  Div.  414. 
One  whose  conviction  is  valid  will  not  be  released  on  habeas 
corpus  though  the  commitment  was  erroneous,  if  such  judgment 
was  incorporated  in  the  commitment.  People  ex  rel.  Peck  v. 
Schantz,  13  Misc.  563,  34  Supp.  1099. 

Under  the  provisions  of  the  Code  of  Criminal  Procedure,  pro- 
viding that  a  magistrate  can  commit  a  person  to  answer  for  a 
crime  only  when  it  appears  that  a  crime  has  been  committed  and 
that  there  is  sufficient  cause  to  believe  the  defendant  guilty 
thereof,  some  evidence  of  defendant's'guilt  is  necessary  to  give  the 
magistrate  jurisdiction,  and  therefore  on  habeas  corpus  the  court 
may  go  behind  the  commitment  and  ascertain  whether  there  was 
any  evidence  before  the  committing  magistrate  which  connected 
defendant  with  the  crime.  ///  re  Henry,  13  Misc.  734,  35  Supp. 
210,  69  St.  Rep.  590.  When  a  return  to  a  writ  contained  the 
commitment  and    a  copy  of  the  complaint,  and    a   traverse  was 


WRIT   OF   HABEAS   CORPUS.  115 


Art.  5.     Proceedings  on  Return. 


interposed  denying  that  the  petitioner  was  examined  or  any  evi- 
dence taken,  an  issue  of  fact  is  made  up,  and  the  case  should  be 
heard  on  the  evidence.  In  re  Simon,  59  Hun,  624,  13  Supp.  399. 
Under  §  2036  it  is  expressly  provided  that  where  a  prisoner  is 
not  entitled  to  his  discharge,  he  must  be  remanded  to  the 
custody  from  which  he  was  taken,  unless  the  person  in  whose 
custody  he  was  is  not  lawfully  entitled  thereto ;  in  which  case 
the  order  remanding  him  must  commit  him  to  the  custody  of  the 
ofificer  or  person  so  entitled.  People  ex  rel.  Post  v.  Grant,  50 
Hun,  243,  3  Supp.  143,  20  St.  Rep.  48. 

Where  objection  is  made  to  a  return,  it  seems  a  further  return 
by  the  sheriff  may  be  made  showing  the  facts,  or  the  judge  may 
take  oral  evidence  to  ascertain  them.  People  ex  rel.  Clark  v. 
Grant,  1 1 1  N.  Y.   584,  affirming  47  Hun,  605. 

Where  a  demurrer  was  interposed  to  the  return  of  the  sheriff 
to  a  writ  of  habeas  corpus,  and  the  case  decided  on  the  demurrer, 
it  was  held  proper  to  tax  a  trial  fee  of  $20  as  upon  a  trial  of  an 
issue  of  law,  and  not  proper  to  tax  costs  before  notice  of  trial  on 
the  demurrer  strictly  speaking.  In  re  Bernhard,  i  Supp.  225,  14 
Civ.  Pro.  195,  48  Hun,  620. 

The  plain  implication  of  §  2039  is  that  the  return  is  assumed 
to  be  true,  except  in  so  far  that  its  material  allegations  are  con- 
troverted by  the  traverse,  and  that  portion  which  requires  the  court 
or  judge  before  whom  the  prisoner  is  tried,  to  proceed  in  a  sum- 
mary way  to  hear  the  evidence,  has  no  application  unless  the 
material  allegations  showing  jurisdiction  are  controverted  by  the 
traverse.  Peo.  ex  rel.  Danziger  v.  P.  E.  House  of  Mercy,  128  N.  Y. 
187.  In  the  case  of  Peo.  ex.  rel.  Keator  v.  Moss,  6  App.  417,  the 
court  says:  "  Proceedings  in  these  cases  are  not  governed  by  the 
strict  rules  of  pleading  which  are  applicable  to  civil  actions. 
They  are  summary  in  their  nature,  and  the  only  requirement  is 
that  there  shall  be  presented  to  the  court  or  judge  some  facts 
or  allegations  in  such  a  way  that  he  may  know  that  the  alle- 
gations of  the  return  are  denied.  The  statute  does  not  say  that 
such  denials  or  allegations  must  be  by  way  of  formal  traverse, 
although  as  a  matter  of  practice  they  are  made  by  a  traverse  to 
the  return,  but  they  may  be  made  by  affidavit,  or  they  may  even 
be  made  orally.  The  statute  does  not  prescribe  any  manner  in 
which  the  return  shall  be  denied." 

The  judge  before  whom  the  prisoner  is  produced  must  immedi- 


Il6  WRIT   OF   HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

ately  examine  the  facts  alleged  in  the  return,  and  into  the  cause 
of  the  imprisonment,  and  discharge  or  remand  him  as  the  case 
may  require.  People  ex  rel.  James  v.  Society  for  the  Prevention 
of  Cruelty  to  Children,  19  Misc.  678.  If  a  party  is  held  under  a 
judgment  when  there  was  no  jurisdiction  to  pronounce  the  same, 
through  either  want  of  jurisdiction  or  through  excess  thereof, 
the  judgment  is  void  and  he  may  be  released  on  habeas  corpus 
without  being  put  to  an  appeal  from  the  judgment.  People  ex 
rel.  Yotuig  v.  Stout,  81  Hun,  341.  In  habeas  corpus,  when  it 
appears  that  the  person  is  in  custody  under  a  commitment  by 
the  magistrate,  the  only  inquiry  is,  as  to  whether  the  magis- 
trate has  jurisdiction,  and  the  magistrate's  decision  cannot  be  re- 
viewed ;  hence  it  is  not  essential  to  return  the  evidence  on  the  trial. 
People  ex  rel.  Danziger  v.  P.  E.  House  of  Mercy,  128  N.  Y.  182. 
If  the  process  by  which  the  prisoner  is  held  is  valid  on  its  face, 
the  burden  of  impeaching  its  validity  rests  upon  the  prisoner 
upon  appeal.  On  habeas  corpus  only  two  questions  can  be  ex- 
amined :  first,  as  to  the  jurisdiction  of  the  court  or  officer  mak- 
ing the  commitment ;  second,  as  to  the  form  of  commitment. 
The  court  has  no  power  to  inquire  into  the  justice  or  propriety 
of  the  commitment,  nor  can  the  Supreme  Court  review  upon 
certiorari  the  judgment  of  a  court  ordering  commitment  for 
contempt.     Matter  of  Taylor,  8  Misc.  168. 

The  test  of  a  right  to  habeas  corpus  is  whether  the  tribunal  was 
competent,  by  reason  of  its  criminal  or  civil  jurisdiction,  to  ren- 
der the  judgment  by  virtue  of  which  the  person  is  held  ;  there- 
fore relief  from  imprisonment  on  execution  in  the  justices' 
court,  in  an  action  for  the  violation  of  the  Excise  Law,  cannot 
be  had  by  habeas  corptis,  on  the  grounds  that  the  justice  had  no 
proof  of  a  delivery  of  the  summons  properly  indorsed,  or  that  he 
had  lost  jurisdiction  by  improper  adjournment,  or  because  the 
costs  were  excessive  if  the  justice  would  have  had  jurisdiction 
to  render  the  judgment  that  he  did  render.  People  ex  rel.  Martin 
V.  ITalters,  15  Abb.  N.  C.  462.  Where  it  appears  b}'  the  re- 
turn to  the  writ,  that  the  prisoner  is  detained  by  virtue  of 
the  final  judgment  or  decree  of  a  competent  tribunal,  it  is  the 
duty  of  the  judge  to  make  an  order  remanding  the  prisoner  to 
custody.  People  ex  rel.  McLoughli)i  v.  Wilson,  88  Hun,  260. 
Where  the  judgment  of  a  court  of  record  is  \oid,  by  reason  of 
a  lack  of  power  to  imj^ose  the   punishment  given,  the    prisoner 


WRIT   OF   HABEAS   CORPUS.  II7 


Art.  5.     Proceedings  on  Return. 


may  be  remanded  for  re-sentence,  and  the  record  corrected  ;  but 
where  such  improper  sentence  was  given  in  a  court  of  special 
sessions,  the  prisoner  cannot  be  remanded  for  the  further  action 
of  the  court,  for  it  has  ceased  to  exist  for  the  purpose  of  the 
case,  when  the  judgment  was  pronounced.  A  conviction  which 
imprisons  a  person  for  a  period  not  exceeding  80  days  is  void, 
being  indefinite.      People  ex  rel.  Johiiso?i    v.    Webster,  92   Hun, 

379- 

A  traverse  is  demurrable  when  it  does  not  dispute  the  facts 

showing  the  jurisdiction  of  the  magistrate,  nor  allege  extrinsic 

facts  showing  a  want   of  jurisdiction.       People  ex  rel.  Lazarus  v. 

House  of  Mercy,  23  App.  Div.  386. 

Where  a  person  has  been  found  guilty  of  charges  by  a  delin- 
quency court  under  the  Military  Code,  the  court  upon  the  habeas 
corpus  will  not  inquire  into  the  legality  or  justice  of  the  order 
of  the  delinquency  court,  and  if  there  be  an  error  in  its  exercise 
of  jurisdiction,  the  remedy  is  by  certiorari  or  appeal.  People 
ex  rel.  Patterson  v.  Reid,  64  Hun,  454.  Where  one  is  held  on  an 
order  adjudging  him  guilty  of  contempt,  he  will  be  discharged  on 
habeas  corpus  ;  first,  where  the  punishment  exceeded  that  which 
the  court  was  authorized  to  inflict  by  §  9,  Code  Civ.  Pro. ;  or 
second,  if  it  be  assumed  that  he  is  held  under  the  Code  provisions 
for  the  punishment  for  a  civil  contempt  and  where  there  is  no 
adjudication  that  the  conduct  complained  of  was  calculated  to, 
or  did  actually,  impede,  impair,  or  prejudice  the  rights  and 
remedies  of  the  petitioner.  Matter  of  Swenarton  v.  Shupe,  40 
Hun,  42. 

Where  a  person  is  committed  for  a  contempt,  and  where  the 
objection  that  the  sheriff  had  no  power  to  imprison  the  prisoner 
in  that  particular  county,  as  commanded  by  the  commitment, 
might  be  well  taken,  yet,  in  such  case  the  court  may  make  an 
order  remanding  him  to  the  custody  of  the  officer  lawfully  en- 
titled thereto.     People  ex  rel.  Post  v.  Grant,  50  Hun,  246. 

Costs,  while  not  allowed  in  habeas  corpus  proceedings  of  a 
criminal  nature,  may  be  awarded  in  the  discretion  of  the  court  in 
a  civil  proceeding  of  that  nature,  and  where  such  a  charge  is  made 
against  a  party  in  a  final  order,  the  circumstances  which  determine 
the  sum  charged  should  clearly  appear  before  the  court  by  which 
the  order  is  made.  Matter  of  Tecsc,  2,2  \'p]i.D'w.  46,  citing  Bick- 
fordv.  Searlcs,  9  App.  151. 


Il8  WRIT   OF  HABEAS   CORPUS. 

Art.  5.     Proceedings  on  Return. 

Order  Discharging  Prisoner. 


In  the   Matter  of  the  Application  of  Richard   !    g  y^^^   ^gn 
Stokes  for  a  Writ  of  Habeas  Corpus.  |  '         " 

. J 

Whereas,  a  writ  of  habeas  corpus  has  been  heretofore  issued  on  the 
appUcation  of  Richard  Stokes  to  the  sheriff  of  Ulster  County,  com- 
manding him  to  bring  up  the  body  of  said  Stokes  for  the  purpose  of 
inquiry  into  the  cause  of  his  detention,  and  the  said  prisoner  having 
been  brought  before  me  and  an  examination  had,  and  it  appearing  on 
such  examination  that  the  said  Richard  Stokes  is  unlawfully  imprisoned 
and  restrained  of  his  liberty  by  reason  of  want  of  jurisdiction  on  the 
part  of  the  court  of  special  sessions  at  which  he  was  tried  :  Now, 
after  hearing  John  F.  Cloonan  on  behalf  of  the  prisoner,  and  J.  N. 
Vanderlyn,  district  attorney,  opposed  —  it  is,  therefore,  finally  ordered 
that  the  said  Richard  Stokes  be  and  hereby  is  forthwith  discharged 
from  the  custody  of  the  sheriff  of  Ulster  County,  and  from  further 
imprisonment  under  and  by  virtue  of  the  commitment  of  the  court  of 
special  sessions,  made  herein  by  F.  D.  L.  Montanye,  Esq.,  by  which 
he  was  held  by  said  sheriff.  WILLIAM   S.   KENYON, 

Dated  May  2,  1887.  County  Judge  of  Ulster  County. 


Order  Remanding  Petitioner. 

NEW  YORK  SUPREME  COURT. 


In  the  Matter  of  the  Application 

of 

Frederick  L.  Taylor  for  a  Writ  of  Habeas  Corpus 


.  143  N.  Y.  219. 


It  appearing  on  the  return  of  the  writ  of  habeas  corpus  allowed  by  me, 
that  Frederick  L.  Taylor,  upon  whose  petition  the  said  writ  was  issued, 
is  lawfully  detained  by  the  sheriff  of  Tompkins  County  by  virtue  of  a 
mandate  of  the  Court  of  Oyer  and  Terminer,  committing  said  Frederick  L. 
Taylor  to  the  custody  of  the  sheriff  of  Tompkins  County  for  a  criminal 
contempt  committed  in  the  presence  and  in  the  view  of  said  court,  a  copy 
of  which  said  mandate  is  annexed,  to  the  return  of  said  sheriff  and  made 
a  part  thereof,  and  which  criminal  contempt  for  which  the  said  Fred- 
erick L.  Taylor  was  committed  to  the  custody  of  the  sheriff  of  Tom|> 
kins  County  as  aforesaid,  is  specially  and  plainly  charged  in  said  man- 
date : 

And  it  further  appearing  that  said  Court  of  Oyer  andTermincr  had  full 
jurisdiction  and  authority  to  charge  and  commit  for  contempt,  and  that 
the  said  Frederick  L.  Taylor  is  not  entitled  to  be  bailed : 

I  do  hereby  finally  order  that  all  the  proceedings  in  this  matter  be 


WRIT   OF   HABEAS   CORPUS.  119 


Art.  5.      Proceedings  on  Return. 


and  the  same  hereby  are  dismissed  and  the  prisoner  remanded  to  the 
custody  of  the  sheriff  of  Tompkins  County. 
Dated,  March  26th,  1894. 

WALTER  LLOYD  SMITH, 

/.  s.  a 

Order  Dismissing  Writ. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York,  held 
at  the  court-house  in  the  city  of  New  York  on  the  31st  day  of 
July,  1884. 

Present  : — Hon.  Abraham  R.  Lawrence,  y//j-//<:^. 


The  People  ex  rel.  Morris  Fray 

agst. 

The  Warden  of  the  County  Jail  of  the  County 
of  New  York  and  the  nth  Regiment,  N.  G  S. 

N.  Y. 


100  N.  Y.  20. 


. J 

Upon  the  petition  for  a  writ  of  habeas  corpus  herein  filed,  and  the  writ 
of  habeas  corpus  thereon  issued  and  upon  the  return  thereto,  also  filed, 
and  the  proceedings  had  before  the  court  martial,  etc.,  and  after  hearing 
Isaac  L.  Sink,  Esq.,  attorney  for  relator  for  the  motion  to  discharge 
relator,  and  Horatio  C.  King,  Esq.,  Judge  Advocate  General,  etc.,  in 
opposition  thereto  : 

It  is  ordered  that  said  writ  of  habeas  corpus  be  and  the  same  is  hereby 
dismissed,  and  the  relator  Morris  Frey  is  hereby  remanded  back  to  the 
custody  of  the  warden  of  the  county  jail  of  the  county  of  New  York. 

It  is  further  ordered,  that  Isaac  L.  Sink,  Esq.,  the  attorney  for  the 
relator,  in  whose  custody  the  relator  was  placed  pending  the  decision  of 
this  application,  surrender  the  said  Morris  Frey  to  the  warden  of  the 
county  jail  of  New  York  County  within  48  hours  after  the  service  of  a 
duly  certified  copy  of  this  order  upon  him. 

PATRICK  KEENAN, 

Clerk. 

Order  Dismissing  Writ. 

SUPREME  COURT. 


In  the  Matter  of  the    Application  of  Lafayette 

E.  Pruyne  as  guardian  of  the  person  and  es-   !  -vr   v       R 

tate  of  Tirzah  G.  Bigelow  and  infant  for  the    f  '^^  ^-  ^-  23»- 
custody  of  said  infant. 


A  writ  of  habeas  corpus  having  been  issued  and  allowed  by  the  Hon. 
George  N.  Kennedy,  one  of  the  justices  of  the  Supreme  Court,  Feb- 
ruary 15th,  1887,  directed  to  Charles  H.  Walts,  commanding  him  to 
produce  before  said  justice  at  the  court-house  in  the  city  of  Watertown 


I20  WRIT    OF    HABEAS    CORPUS. 

Art.   5.     Proceedings  on  Return. 

on  the  13th  day  of  Februar)',  then  instant,  the  body  of  Tirzah  G. 
Bigelow,  together  with  said  writ,  which  was  issued  and  allowed  upon  the 
wTitten  petition  of  LaFayette  E.  Pruyne,  verified  February'  4th,  1887, 
setting  forth  that  said  Tirzah  G.  Bigelow,  among  other  things,  is  an 
infant  about  eight  years  of  age,  the  only  child  of  LaFayette  E.  Bigelow, 
deceased,  who  died  in  August,  1884,  leaving  a  last  will  and  testament, 
which  has  been  duly  probated  in  the  surrogate's  court  of  Jefferson  County, 
N.  Y.,  wherein  and  whereby  he,  said  Pruyne,  was  appointed  testamentarj- 
guardian  of  said  infant  during  her  minority  ;  that  letters  of  said  guardian- 
ship had  been  issued  to  him  by  the  surrogate  of  said  county ;  that  the 
mother  of  said  infant  died  in  December,  1886,  and  that  said  infant  was 
detained,  imprisoned,  and  restrained  of  her  liberty  by  said  Charles  H. 
Walts,  illegally  and  under  claim  that  an  arrangement  was  made  between 
him  and  the  mother  of  said  infant  in  her  lifetime,  whereby  said  Walts, 
neither  relative  nor  guardian  of  her,  should  have  the  care  and  custody 
of  said  infant. 

And  in  obedience  to  said  writ  said  Walts  having  produced  said  infant 
and  writ,  and  made  and  filed  his  verified  return  thereto,  setting  forth, 
among  other  things,  an  agreement  between  him  and  the  mother  of  said 
infant  whereby  it  was  agreed  that  he  should  take  and  have  the  care  and 
custody  of  said  infant  and  of  her  education  during  her  minority,  and 
that  said  infant  was  and  since  the  death  of  her  mother  had  been  under 
his  care  and  that  of  his  wife  in  his  family,  where  said  infant  was  at- 
tended and  well  cared  for  and  much  attached  to  himself  and  his  wife, 
both  of  whom  wish  to  retain  said  child  and  have  the  care  and  custody 
of  her,  and  are  so  situated  and  have  the  ability  properly  to  do  so, 
and  have  ;  and  said  petitioner  having  filed  a  traverse  of  some  of  the 
allegations  contained  in  said  return,  and  the  hearing  thereon  having  been 
continued  to  the  23d  day  of  Februar\-,  aforesaid,  at  the  same  place, 
when  a  hearing  of  the  evidence  on  the  part  of  the  respective  parties  was 
had,  and  after  hearing  counsel  of  both  parties  and  duly  considered  the 
proofs,  said  justice  made  his  decision  in  writing,  directing,  for  the  reason 
therein  contained,  that  said  writ  be  dismissed  without  prejudice  to 
further  proceedings  : 

Now,  on  reading  and  filing  said  decision,  it  is,  on  motion  of  Levi  H. 
Brown,  attorney  for  said  Charles  H.  Walts. 

Ordered,  that  said  writ  of  habeas  corpus  and  all  proceeding  therein  be 
and  the  same  are  dismissed  without  prejudice  to  future  proceedings,  and 
that  said  Tirzah  G.  Bigelow  be  allowed  to  remain  in  the  care  and  custody 
of  said  Charles  H.  Walts  until  the  future  order  of  this  court  in  the 
premises. 

Let  this  order  and  the  papers  used  thereon  be  entered  and  filed  in 
Jefferson  County. 

A  copy:  GEORGE  N.  KENNEDY, 

F.  WADDINGTON,  /•  S.  C. 

Clerk, 


WRIT   OF    HABEAS   CORPUS.  121 

Art.  5.     Proceedings  on  Return . 

Order  of  Discharge.     (144  N.  Y.  699.) 

At  a  General  Term  of  the  Supreme  Court  of  the  State  of  New  York  in 
and  for  the  Fifth  Judicial  Department,  held  at  the  court-room  in 
the  city  of  Rochester,  Monroe  County,  on  the  21st  day  of  October, 
1894. 

Present  : — Hon.  Charles  C.  Dwight,  Presiding  Justice. 
Hon.  Loran  L.  Lewis,        ^ 
Hon.  Albert  Haight,  >■  Associate  Justices. 

Hon.  George  E.  Bradley,  ) 

The  People  of  the  State  of  New  York  ex  rel. 
Charles   Young, 

agst. 

James  C.  Stout,  Agent  and  Warden  of   State 
Prison  at  Auburn,  N.  Y. 

Decision  and  order  filed  February  13,  1894. 

Whereas,  a  writ  of  habeas  corpus  has  been  duly  heretofore  issued  by 
the  aforesaid  General  Term  on  the  application  of  William  H.  Sullivan, 
one  of  the  attorneys  of  the  above-named  relator,  to  James  C.  Stout,  Esq., 
agent  and  warden  of  the  State  prison  at  Auburn,  N.  Y.,  commanding 
him  to  bring  up  the  body  of  the  above-named  relator,  Charles  Young,  for 
the  purpose  of  inquiring  into  the  cause  of  his  detention,  and  the  said 
Young  having  been  personally  brought  before  this  court,  and  an  ex- 
amination had,  and  it  appearing  on  such  examination  that  the  said  Young 
is  unlawfully  imprisoned  or  restrained  of  his  liberty  by  reason  of  the 
commitment  of  the  said  Young  by  the  Monroe  County  court  of  sessions 
on  July  16,  1894,  under  which  said  Young  is  restrained  of  his  liberty,  be 
illegal  and  void  and  in  violation  of  the  terms  of  the  treaty  and  supple- 
mental treaty  between  the  United  States  of  America,  and  her  Britannic 
Majesty,  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
and  the  district  attorneys  of  Cayuga  County  and  of  Monroe  County 
having  been  duly  notified  of  the  hearing  in  this  matter  pursuant  to  an 
order  of  this  General  Term,  directing  said  writ  to  issue,  and  proof  of 
such  notice  having  been  filed,  and  the  aforesaid  State  agent  having 
directed  the  sheriff  of  Monroe  County  to  take  into  his  custody  the  person 
of  the  said  relator  and  keep  him  confind  in  the  Monroe  County  jail  in 
Rochester,  N.  Y.,  until  a  final  determination  in  the  aforesaid  proceeding 
or  matter  and  until  the  further  order  of  this  court  and  General  Term 
in  the  premises. 

Now,  after  hearing  Messrs.  H.  J.  &  W.  H.  Sullivan  on  behalf  of  the 
relator  and  prisoner,  Charles  Young,  in  favor  of  his  discharge,  and 
Howard  H.  Widener,  Esq.,  assistant  district  attorney  of  Monroe  County, 
and  Messrs.  Rich  &  Aiken,  attorneys  and  counsel  for  said  district 
attorney  and  the  above-named  defendant. 

It  is  ordered,  that  said  Charles  Young  be  and  he  is  hereby  forthwith 
discharged  from  the  custody  of  John  W.  Hannan,  Esq.,  sheriff  of  the 


122  WRIT   OF   HABEAS   CORPUS. 

Art.  6.     Proceedings  when  Prisoner  Discharged  and  Effect  of  Discharge. 

county  of  Monroe,  and  from  the  jail  of  said  county  and  from  the  custody 
of  James  C.  Stout,  Esq.,  agent  and  warden  of  State  prison  at  Auburn, 
N.  v.,  and  from  said  prison,  and  from  further  imprisonment  under  and  by 
virtue  of  the  commitment  of  the  court  of  sessions  held  in  and  for  the 
county  of  Monroe  on  the  i6th  day  of  July,  1894,  by  which  the  said 
Young  was  held  by  the  aforesaid  defendant,  James  C.  Stout,  Esq.,  agent 
and  warden  aforesaid,  in  said  State  prison,  and  that  the  said  sheriff  be 
and  he  hereby  is  directed  to  discharge  the  said  Young  from  his  custody 
at  the  end  of  five  days  from  the  date  of  service  of  a  copy  of  this  order 
upon  the  district  attorney  of  Monroe  County, 

K.  P.    SHEDD, 

Clerk. 

ARTICLE  VI. 

Proceedings  when  Prisoner  Discharged  and  Effect  of 
Discharge.    §§  2048,  2049,  2050. 

§  2048.  Order  substituted,  for  -writ  of  discharge ;  service  and 
effect  thereof. 

The  writ  of  discharge  is  abolished.  A  final  order  to  discharge  a  prisoner,  made  as 
prescribed  in  this  article,  may  be  served  in  hke  manner  as  an  injunction  order,  and 
when  so  served,  it  may  be  enforced  in  the  same  manner  as  a  final  judgment  in  a  civil 
action,  except  where  special  provision  for  its  enforcement  is  otherwise  made  in  this 
act  Where  such  an  order  directs  a  discharge,  upon  giving  bail,  the  service  thereof 
is  not  complete  until  service  of  the  certificate,  or  other  proof  prescribed  by  law 
■showing  that  bail  has  been  given,  as  required  thereby. 

See  §§  610  and  1241. 

§  2049.  Enforcing  order  for  discharge  ;  penalty,   etc. 

Obedience  to  a  final  order  to  discharge  a  prisoner,  made  as  prescribed  in  this 
article,  may  be  enforced  by  the  court  which,  or  the  judge  who  made  the  same  by 
attachment,  as  for  a  neglect  to  make  a  return  to  a  writ  of  habeas  corpus,  and  with 
like  effect.  A  person  guilty  of  such  disobedience  forfeits,  to  the  prisoner  aggrieved, 
one  thousand  two  hundred  and  fifty  dollars,  in  addition  to  the  damages  which  the 
latter  sustains. 

Section  57,  R.  S.,  am'd.     See  §§  2020  and  2051. 

§  2050.  When  prisoner  discharged  not  to  be  re-imprisoned; 
when  he  may  be. 

A  prisoner,  w'ho  has  been  discharged  by  a  final  order,  made  upon  a  writ  of  habeas 
corpus  or  certiorari,  issued  as  prescribed  in  this  article,  shall  not  be  again  imprisoned, 
restrained,  or  kept  in  custody,  for  the  same  cause.  Hut  it  is  not  deemed  to  be  the 
same  cause,  in  either  of  the  following  cases  : 

1.  Where  he  has  been  discharged  from  a  conimilinent  on  a  criminal  charge  ;  and 
is  afterwards  committed  for  the  same  offence,  by  the  lawful  order  or  other  mandate 
of  the  court,  wherein  he  was  bound  by  recognizance  to  appear,  or  in  which  he  has 
been  indicted  or  convicted  for  the  same  offence. 

2.  Wliere  he  has  been  discharged,  in  a  criminal  cause,  for  defect  of  proof,  or  for  a 
material  defect  in  the  cotnmilmeiit  ;  and  is  afterwards  arrested  on  sufficient  proof, 
and  committed  bv  a  lawful  mandate  for  the  same  offence. 


WRIT   OF   HABEAS   CORPUS.  1 23 

Art.  6.     Proceedings  when  Prisoner  Discharged  and  Effect  of  Discharge. 

3.  Where  he  has  been  discharged,  in  a  civil  action  or  special  proceeding,  for  an 
illegality  in  the  judgment,  final  order  or  other  mandate,  as  prescribed  in  this  article  ; 
and  IS  afterwards  imprisoned  by  virtue  of  a  lawful  judgment,  final  order,  or  other 
mandate,  for  the  same  cause  of  action. 

4.  Where  he  has  been  discharged,  in  a  civil  action  or  special  proceeding,  from  im- 
prisonment by  virtue  of  an  order  of  arrest  ;  and  is  afterwards  taken  in  execution,  or 
other  final  process,  in  the  same  action  or  special  proceeding,  or  arrested,  in  another 
action  or  special  proceeding,  after  the  first  was  discontinued. 

If  the  officer  has  no  jurisdiction  the  order  made  on  the  writ  is 
void  and  the  prisoner  may  be  re-arrested.  Spaldifig  v.  People,  7 
Hill,  301  ;  Cable  v.  Cooper,  15  Johns.  152.  It  is  held  if  the  order 
is  valid  and  the  prisoner  is  re-arrested  he  may  again  have  the  writ. 
People  ex  rel.  v.  Kelly,  i  Abb.  (N.  S.)  432.  There  is  no  principle 
upon  which,  after  an  imprisonment  has  been  adjudged  to  be 
illegal,  a  party  can  be  restrained  of  his  liberty  without  some 
new  legal  process  so  long  as  the  judgment  stands.  People  ex 
rel.  Young  \.  Stout,  10  Misc.  247,  6^  St.  Rep.  862,  31  Supp.  421. 
Where  a  husband  was  arrested  and  imprisoned  under  a  com- 
mitment for  contempt  for  failure  to  pay  alimony,  and  afterward 
another  commitment  was  issued  against  him  for  the  same  cause, 
and  again  because  the  two  preceding  commitments  were  irregular 
and  defective,  a  third  commitinent  was  issued,  from  arrest,  under 
none  of  which  had  he  been  discharged  by  the  court,  although  he 
applied  by  habeas  corpus  for  his  discharge  from  arrest,  under  the 
two  first  commitments,  but  said  two  first  commitments  were 
countermanded  by  the  plaintiff  therein,  it  was  held,  that  he  could 
not  obtain  his  release  under  habeas  eorpiis,  and  it  seems  he  could 
not  secure  his  discharge  on  this  ground,  even  if  he  had  been  dis- 
charged from  imprisonment  under  the  two  first  commitments,  if 
such  discharge  was  made  on  the  ground  of  the  illegality  of  the 
commitments.  People  ex  rel.  Clark  v.  Grant,  13  Civ.  Pro.  183,  47 
Hun,  605.  Ill  N.  Y.  584. 

Where  one  has  been  discharged  from  imprisonment  under  a 
commitment  to  await  the  action  of  the  grand  jury,  an  action  for 
malicious  prosecution  cannot  be  maintained  before  the  grand 
jury  has  considered  the  case,  because  by  the  force  of  §  2050 
such  a  commitment  does  not  prevent  a  subsequent  imprison- 
ment for  the  same  cause,  and  an  action  for  malicious  prosecution 
cannot  be  maintained  until  the  proceeding  complained  of  has 
been  legally  terminated  in  favor  of  the  accused.  Hines  v.  Parker, 
II  App.  329. 


124  WRIT   OF   HABEAS   CORPUS. 

Art.  7.     Proceedings  when  Prisoner  Entitle  to  Baild. 

ARTICLE  VII. 

Proceedings  when  Prisoner  Entitled  to  Bail.    §§  2035, 

2045,  2046,  2047. 

§  2035.  Proceedings  on  irregular  eommitment. 

If  it  appears  that  the  prisoner  has  been  legally  committed  for  a  criminal  offence, 
or  if  he  appears  by  the  testimony  offered  with  the  return,  or  upon  the  hearing 
thereof,  to  be  guilty  of  such  an  offence,  although  the  commitment  is  irregular,  the 
court  or  judge,  before  which  or  whom  he  is  brought,  must  forthwith  make  a  final 
order,  to  discharge  him  upon  his  giving  bail,  if  the  case  is  bailable  ;  or,  if  it  is  not 
bailable,  to  remand  him.  Where  bail  is  given  pursuant  to  an  order,  made  as  pre- 
scribed in  this  section,  the  proceedings  are  the  same  as  upon  the  return  to  a  writ  of 
certiorari,  where  it  appears  that  the  prisoner  is  entitled  to  be  bailed. 

§  2045.  Bail  on  certiorari;  when  and  how  ordered. 

If,  upon  the  return  to  a  writ  of  certiorari,  issued  as  prescribed  in  this  article,  it 
appears,  that  the  person  imprisoned  or  detained  is  entitled  to  be  bailed,  the  court  or 
judge  must  make  a  final  order,  fixing  the  sum  in  which  he  is  to  be  admitted  to  bail  ; 
specifying  the  court,  and  the  term  thereof,  at  which  he  is  required  to  appear  ;  and 
directing  his  discharge,  upon  bail  being  given  accordingly,  as  required  by  law.  If 
sufficient  bail  is  immediately  offered,  the  court  or  judge  must  take  it  ;  otherwise,  bail 
may  be  given  afterwards,  as  prescribed  in  the  next  section. 

§  2046.    [Am'd,  1895.]    Id.  ;  by  whom  and  how  taken. 

Upon  tlie  production  of  the  order,  or,  if  it  was  made  by  a  court,  of  a  certified  copy 
thereof,  to  a  justice  of  the  Supreme  Court,  or  to  the  county  judge  or  special  county 
judge  of  the  county,  where  the  prisoner  is  detained,  the  judge  must  take  the  recog- 
nizance of  the  prisoner,  with  two  sureties,  in  the  sum  so  fixed,  conditioned  for  the 
appearance  of  the  prisoner,  as  prescribed  in  the  order.  Each  person,  offering  him- 
self as  a  surety,  must  show,  by  his  oath,  to  the  satisfaction  of  the  judge,  that  he  is  a 
householder  in  the  county,  and  worth  twice  the  sum  in  which  he  is  required  to  be 
bound,  over  and  above  all  demands  against  him.  It  is  not  necessary,  that  the 
prisoner  should  appear  in  person  before  the  judge,  to  acknowledge  the  recogni- 
zance ;  but  it  may  be  acknowledged  by  the  prisoner,  and  certified,  in  like  manner 
as  a  deed  to  be  recorded  in  the  county. 

§  2047.  Discharge  of  prisoner  bailed. 

The  judge  must  immediately  file  the  recognizance  with  the  clerk  of  the  court,  be- 
fore which  the  prisoner  is  bound  to  appear.  He  must  also  make  a  certificate  upon 
the  order,  or  the  certified  copy  thereof,  to  the  effect  that  it  has  been  complied  with. 
Upon  production  of  the  certificate,  the  prisoner  is  entitled  to  his  discharge  from  im- 
prisonment, for  any  cause  stated  in  the  return  to  the  certiorari. 

Section  2035  applies  where  a  party  has  been  committed. 
Matter  of  Gorsline,  21  How.  85.  Unless  it  appears  that  the  court 
in  a  county  to  which  a  prisoner  under  arrest  is  being  carried  is 
not  in  session.  People  v.  Cletvs,  JJ  N.  Y.  39.  The  finding  of  an 
unauthorized  inquest  is  not  sufficient  to  hold  a  prisoner  on  habeas. 
People  V.  Bridge,  4  Park.  Cr.  519.     Proof  of  guilt  must   be  made 


WRIT   OF   HABEAS    CORPUS.  1 25 

Art.  8.  When  Warrant  or  Warrant  of  Attachment  Issues. 

at  the  hearing  on  the  return  and  not  afterward.  Matte?-  of  Hey- 
zvard,  i  Sandf.  701.  If  a  military  tribunal  has  no  jurisdiction  on 
hearing  of  the  writ,  a  prisoner  will  be  turned  over  to  the  civil 
authorities.     Matter  of  Martin,  45  Barb.  142. 

A  relator  on  habeas  corpus  who  is  remanded  to  custody  on  a 
bench  warrant,  and  desires  a  stay  pending  an  appeal  to  the 
Court  of  Appeals,  must  himself  personally  execute  the  recogni- 
zance within  the  jurisdiction  of  the  court.  People  ex  rel.  Sherwin 
V.  Mead,  64  How.  252. 

Precedent  for  Order  to  Admit  to  Bail. 


1 


In  the  Matter  of  the  AppHcation   of  Richard  i     ,0  it        -o. 
Stokes  for  a  writ  of  habeas  corpus.  \  '       ' 


rpii 

J 


The  above-named  petitioner,  having  sued  out  a  writ  of  habeas 
corpus,  and  writ  of  certiorari  to  review  detention,  and  a  return 
thereto  having  been  made,  and  such  return  having  been  traversed 
by  the  said  petitioner  and  a  hearing  having  this  day  been  had, 
and  it  appearing  that  the  said  Richard  Stokes  is  entitled  to  be 
admitted  to  bail  :  Now,  after  hearing  John  F.  Cloonan  for  the 
petitioner,  and  J.  N.  Vanderlyn,  Esq.,  opposed,  it  is  ordered  that 
the  said  Richard  Stokes  be  discharged  from  imprisonment  on  his 
entering  into  a  recognizance,  with  two  sufificient  sureties,  to  the 
people  of  the  State  of  New  York,  to  appear  at  the  next  court  of 
sessions  to  be  held  in  and  for  the  county  of  Ulster,  at  the  court- 
house in  the  city  of  Kingston,  on  the  loth  day  of  June  next,  and 
not  to  depart  the  court  without  leave,  and  to  abide  the  judgment 
and  order  of  the  court. 

Dated    May  2,  1887.  WILLIAM  S.  KENYON, 

County  Judge. 

ARTICLE  VIII. 

When  Warrant   or   Warrant    of    Attachment    Issues. 

§§  2054-2057,  2028-2030. 

§  2054.  Warrant  to  bring  up  prisoner  about  being  removed.. 

Where  it  appears,  by  proof  satislactory  to  a  court  or  judge,  authorized  to  grant 
either  writ,  that  a  person  is  held  in  unlawful  confinement  or  custody,  and  that  there 
is  a  good  reason  to  believe,  that  he  will  be  carried  out  of  the  State,  or  suffer  irrepar- 
able injury,  before  he  can  be  relieved  by  a  writ  of  habeas  corpus  or  a  writ  of  certiorari ; 
the  court  or  judge  must  issue  a  warrant,  reciting  the  facts,  directed  to  a  particular 
sheriff,  or  generally  to  any  sheriff  or  constable,  or  to  a  person  specially  designated 
therein  ;  and  commanding  him  to  take,  and  forthwith  to  bring  before  the  court  or 


126  WRIT   OF   HABEAS   CORPUS. 

Art.  8.     When  Warrant  or  Warrant  of  Attachment  Issues. 

judge,  the  prisoner,  to  be  dealt  with  according  to  law.     If  the  warrant  is   issued  by  a 
court,  it  must  be  under  the  seal  thereof ;  if  by  a  judge  it  must  be  under  his  hand. 

§  2055.   When  offender  to  be  arrested. 

W^here  the  proof,  specified  in  the  last  section,  is  also  sufficient  to  justify  an  arrest 
of  the  person  having  the  prisoner  in  his  custody,  as  for  a  criminal  offence,  com- 
mitted in  taking  or  detaining  him,  the  warrant  must  also  contain  a  direction  to 
arrest  that  person,  for  the  offence. 

§  2056.  Execution  of  warrant ;  proceedings  to  relieve  prisoner. 

The  officer  or  other  person,  to  whom  the  warrant  is  directed  and  delivered,  must 
execute  it  by  bringing  the  prisoner  therein  named,  and  also,  if  so  commanded  in  the 
warrant,  the  person  who  detains  him,  before  the  court  or  judge  issuing  it  ;  and  there- 
upon the  person  detaining  the  prisoner  must  make  a  return,  in  like  manner,  and  the 
like  proceedings  must  be  taken,  as  if  a  writ  of  habeas  corpus  had  been  issued  in  the 
first  instance. 

§  2057.  Id,;  proceedings  to  punish  offender. 

If  the  person,  having  the  prisoner  in  his  custody,  is  brought  before  the  court  or 
judge,  as  for  a  criminal  offence,  he  is  entitled  to  be  examined,  and  must  be  com- 
mitted, bailed,  or  discharged,  by  the  court  or  judge,  as  in  any  criminal  case  of  the 
same  nature. 

§  2028.  Proceedings  on  disobedience  of  writ. 

Where  a  person,  who  has  been  duly  served  with  either  writ,  refuses  or  neglects, 
without  sufficient  cause  shown  by  him,  fully  to  obey  it,  as  prescribed  in  the  last  two 
sections,  the  court  or  judge,  before  which  or  whom  it  is  made  returnable,  upon  proof 
of  the  due  service  thereof,  must  forthwith  issue  a  warrant  of  attachment,  directed 
generally  to  the  sheriff  of  any  county  where  the  delinquent  may  be  found,  or,  if  the 
delinquent  is  a  sheriff,  to  any  coroner  of  his  county,  or  to  a  particular  person  specially 
appointed  to  execute  the  warrant,  and  designated  therein  ;  commanding  such  officer 
or  other  person  forthwith  to  apprehend  the  delinquent,  and  bring  him  before  the 
court  or  judge.  Upon  the  delinquent  being  so  brought  up,  an  order  must  be  made, 
committing  him  to  close  custody  in  the  jail  of  the  county  in  which  the  court 
or  judge  is  ;  or,  if  he  is  a  sheriff,  in  the  jail  of  a  county,  other  than  his  own 
designated  in  the  order  ;  and,  in  either  case,  without  being  allowed  the  liberties  of 
the  jail.  The  order  must  direct  that  he  stand  committed,  until  he  makes  return  to 
the  writ,  and  complies  with  any  order,  which  may  be  made  by  the  court  or  judge,  in 
relation  to  the  person  for  whose  relief  the  writ  was  issued. 

g  2029.  Id. ;    precept  to  bring  up  prisoner. 

The  court  or  judge  may  also,  in  its  or  his  discretion,  at  the  time  when  the  warrant 
or  attachment  is  issued,  or  afterwards,  issue  a  precept  to  the  sheriff,  coroner,  or  other 
person,  to  whom  the  warrant  is  directed,  commanding  him  forthwith  to  bring  before 
the  court  or  judge  the  person  for  whose  benefit  the  writ  was  granted,  who  must 
thereafter  remain  in  the  custody  of  the  r)fficer  or  person  executing  the  precept,  until 
discharged,  bailed,  or  remanded,  as  the  court  or  judge  directs. 

2  R.  S.  563,  §  36. 

§  2030.  Id.;  power  of  county  may  be  called. 

The  sheriff,  coroner,  or  other  person,  to  whom  a  warrant  of  attachment  or  precept 
is  directed,  as  prescribed  in  either  of  the  last  two  sections,  may,  in  the  execution 
thereof,  call  to  his  aid  the  power  of  the  county,  as  the  sheriff  may  do,  in  the  execu- 
tion of  a  mandate  issued  from  a  court  of  record. 


WRIT  OF   HABEAS   CORPUS.  12/ 

Art.  8.     When  Warrant  or  Warrant  of  Attachment  Issues. 

In  People  ex  rel.  NavagJi  v.  Fri?ik,  41  Hun,  188,  the  question  is 
discussed  as  to  when  a  warrant  of  arrest  may  issue  under  §  2054 
and  when  an  offender  may  be  punished  under  §  2057,  in  case  of 
persons  unlawfully  confining  a  child  ;  also  the  question  as  to  when 
prisoner  must  be  brought  before  the  justice  issuing  the  warrant, 
as  well  as  when  notice  must  be  given  to  the  district  attorney. 

It  is  held  in  a  number  of  cases  that  the  principle  of  res  adjudi- 
cata  applies  to  the  writ.  People  v.  Burtnett,  13  Abb.  8  ;  People 
V.  Orser,  12  How.  550;  Matter  of  Thomas,  10  Abb.  (N.  S.)  114. 
And  that  it  matters  not  that  the  relator  is  different  if  the  same 
question  is  up  for  decision  between  the  same  parties.  Matter  of 
Da  Costa,  i  Park.  Cr.  129.  But  see  People  v.  Brady,  56  N.  Y. 
182,  which  holds  the  contrary,  and  is  now  the  rule  in  this  State. 

Where  it  appears  that  a  child  is  unlawfully  held  in  confine- 
ment in  a  manner  sufficient  to  constitute  the  offence  of  kidnap- 
ping, and  where  there  is  good  reasons  to  believe  that  the  child 
will  be  carried  out  of  the  State  before  it  can  be  relieved  by 
habeas  corpus,  the  issuing  of  a  warrant  is  justified  under  §  2054^ 
Peo.  ex  rel.  Navagh  v.  Frink,  41  Hun,  191. 

Precedent  for  Petition  for  Warrant  to  Bring  up  Prisoner. 

SUPREME  COURT. 


In  the  Matter  of  the  Application  of  Alonzo 
Freeman  for  a  writ  of  certiorari  to  bring  up 
the  body  of  Henry  Freeman,  an  infant. 


J 

The  petition  of  Alonzo  Freeman  shows  to  the  court  that  heretofore 
on  his  application  a  writ  of  habeas  corpus  issued  out  of  this  court, 
commanding  Celia  Freeman  to  bring  up  the  body  of  Henry  Freeman, 
an  infant  ;  that  service  of  such  process  was  duly  made,  and  that  Celia 
Freeman  threatens  to  leave  the  State  of  New  York,  and  remove  per- 
manently with  said  Henry  Freeman  to  the  State  of  Connecticut. 
That  said  Celia  Freeman  obtained  the  custody  of  the  said  infant  by 
forcibly  taking  him  from  the  custody  of  his  grandmother,  and  com- 
mitted an  assault  in  so  doing.  That  she  has  informed  several  persons 
of  her  intention  to  leave  the  State,  and  has  made  preparations  for  her 
departure  before  the  return  day  of  said  writ,  and  this  petitioner  has 
good  reason  to  believe  that  she  will  remove  said  infant  from  the  State 
before  such  return  day.  Wherefore  your  petitioner  prays  that  a  warrant 
issue  pursuant  to  the  provisions  of  §  2054  of  the  Code  of  Civil  Pro- 
cedure, to  bring  up  the  said  Henry  Freeman  before  this  court  to  be 
dealt  with  according  to  law.  ALONZO  FREEMAN. 

{Add  verification.) 


128  WRIT  OF   HABEAS   CORPUS. 

Art.  8.     When  Warrant  or  Warrant  of  Attachment  Issues. 

Precedent  for  Warrant. 

The  People  of  the  State  of  New  York,  to  the  Sheriff  of  the  County  of 
Ulster  : 

It  appearing  by  the  petition  of  Alonzo  Freeman  this  day  read  and 
filed,  that  there  is  good  reason  to  believe  that  Celia  Freeman  is  about 
to  remove  the  body  of  Henry  Freeman,  an  infant,  to  the  State  of 
Connecticut,  and  out  of  the  State  of  New  York,  before  the  return  day 
of  a  writ  of  habeas  eorpus  heretofore  issued  out  of  this  court,  com- 
manding said  Celia  Freeman  to  bring  up  the  said  Henry  Freeman  : 
We  do,  therefore,  command  you  to  bring  forthwith  before  this  court  the 
body  of  the  said  Henry  Freeman,  to  be  dealt  with  according  to  law,  and 
also  the  body  of  the  said  Celia  Freeman. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused  the 
[l.  s.]  seal  of  the  court  to  be  affixed.  A.  B.  PARKER, 

fustice  Supreme  Court. 

See  People  \.  Prink,  4  State  Rep.  162  ;  s.  c.  41  Hun,  188. 

Precedent  for  Warrant  of  Attachment  for  Disobedience  to  Writ. 

The  People  of  the  State  of  New  York,  to  the  Sheriff  of  the  County  of 
Lister,  in  the  State  of  New  York  : 
Whereas,  On  the  20th  day  of  December,  1885,  a  writ  of  habeas 
eorpus  was  issued  out  of  the  Supreme  Court,  directed  to  Celia  Freeman, 
commanding  her  to  have  the  body  of  Henry  Freeman  before  the  Special 
Term  of  said  court,  to  be  held  at  the  court-house  in  the  city  of  Kings- 
ton, on  the  28th  day  of  December,  1885,  then  to  do  and  receive  what 
should  be  then  and  there  considered  ;  and 

Whereas,  It  appears  by  the  affidavit  of  Thomas  B.  Johnson,  filed 
this  day,  that  service  of  such  writ  was  duly  made  on  said  Celia  Freeman 
on  the  20th  day  of  December,  1885  ;  and, 

Whereas,  The  said  Celia  Freeman  has  neglected,  without  sufficient 
cause  shown  by  her,  to  obey  said  writ  as  prescribed  by  law,  in  that  she 
has  not  appeared  in  said  court  in  obedience  to  said  writ,  nor  produced 
the  body  of  said  Henry  Freeman,  nor  made  return  to  said  writ :  You 
are  therefore  commanded  to  forthwith  arrest,  and  apprehend  the  said 
Celia  Freeman,  and  bring  her  before  the  Supreme  Court,  at  a  special 
term  thereof,  to  be  held  at  the  court-house  in  the  city  of  Albany,  on  the 
12th  day  of  January,  1886,  at  the  opening  of  the  court  on  that  day, 
then  and  there  to  be  dealt  with  according  to  law,  and  let  this  be  your 
warrant. 

Witness,  Hon.  Alton   B.   Parker,  justice   of  the  Supreme  Court, 
[l.  s.]         at  the  court-house  in  Kingston,  this  28th  day  of  December, 
1885.  J.  D.  WURTS, 

S.  T.   HULL,  Clerk. 

Attorney  for  Petitioner. 
Indorsed: — "Granted  this  28th  day  of  December,  1885,  on  applica- 
tion of  Alonzo  Freeman.  A.  B.  PARKER, 

^^ fustice  Supreme  Court.^' 


WRIT   OF   HABEAS   CORPUS.  1 29 


Art.  8.     When  Warrant  or  Warrant  of  Attachment  Issues. 


Precedent  for  Commitment. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house  in  the 

city  of  Albany,  on  the  12th  day  of  January,  1886  : 
Present : — Hon.  Alton  B.  Parker,  Justice. 
SUPREME  COURT. 


In  the  Matter  of  the  Application  of  Alonzo 
Freeman  for  a  writ  of  habeas  corpus  to 
inquire  into  the  cause  of  the  detention  of  Henry 
Freeman,  an  infant. 


Whereas,  On  the  20th  day  of  December,  1885,  a  writ  of  habeas 
corpus  was  issued  out  of  this  court,  commanding  Celia  Freeman  to 
produce  the  body  of  Henry  Freeman,  an  infant,  before  a  Special  Term 
of  this  court,  to  be  held  at  the  court-house  in  Kingston,  on  the  28th 
day  of  December,  1885,  and  on  that  day  due  proof  of  service  of 
such  writ  was  made  on  said  Celia  Freeman,  and  she  neglected  to  appear 
or  make  return  to  said  writ  or  produce  the  body  of  said  Henry  Free- 
man ;  and 

Whereas,  A  warrant  of  attachment  was  issued  commanding  the 
sheriff  of  the  county  of  Ulster  to  arrest  and  apprehend  the  said  Celia 
Freeman,  and  bring  her  before  this  court  at  this  term  thereof ;  and 

Whereas,  The  said  Celia  Freeman  has  been  brought  before  the 
court  as  in  said  warrant  of  attachment  commanded,  and  no  sufficient 
cause  has  been  shown  for  such  neglect  to  produce  the  body  of  said 
Henry  Freeman,  as  by  said  writ  commanded,  but  said  Celia  Freeman 
still  refuses  to  comply  with  the  direction  in  said  writ  contained :  Now 
on  motion  of  S.  T.  Hull,  Esq.,  attorney  for  petitioner, 

It  is  ordered,  that  the  said  Celia  Freeman  be  committed  to  close 
custody  in  the  county  jail  of  the  county  of  Ulster,  and  without  the 
liberties  of  said  jail,  there  to  stay  and  stand  committed  until  she  makes 
return  to  said  writ  and  fully  obeys  the  same,  and  complies  with  order 
which  may  be  made  by  the  court  in  relation  to  the  person  of  said 
Henry  Freeman.  A.  B.  PARKER, 

Justice  Supreme  Court. 

Precedent  for  Precept  to  bring  up  Prisoner  on  Disobedience 

to  Writ. 

The  People  oj  the  State  oj  New  York,  to  the  Sheriff  of  the  County  of 
Ulster  : 
Whereas,  A  writ  of  habeas  corpus  was  heretofore  issued  and  served 
commanding  Celia  Freeman  to  bring  the  body  of  Henry  Freeman 
before  this  court  at  a  term  thereon  specified,  and  she  neglected  so  to  do, 
and  failed  to  make  return  to  said  writ ;  and 

Whereas,  A  warrant  of  attachment  was,  therefore,   issued    to   the 
sheriff    of  Ulster  County,    commanding    him   to  bring  the   said   Celia 
9 


130  WRIT   OF   HABEAS   CORPUS. 

Art.   9.     Certiorari  to  Inquire  into  Cause  of  Detention. 

Freeman  before  the  court  at  this  term  thereof,  to   be  dealt  with  accord- 
ing to  law  ;  and 

Whereas,  The  said  Celia  Freeman  has  this  day  been  brought  before 
the  court  and  failed  to  show  sufficient  cause  for  her  neglect  and  dis- 
obedience of  the  writ,  and  still  refuses  to  comply  with  the  command 
thereof:  Now  on  motion  of  S.  T.  Hull,  attorney  for  petitioner, 

We  do,  therefore,  command  you  forthwith  to  bring  the  said  Henry 
Freeman,  before  this  court,  to  remain  in  your  custody  till  discharged 
or  remanded,  as  may  hereafter  be  directed,  and  this  shall  be  your 
warrant. 

Witness,  Hon.  A.  B.  Parker,  justice  of  the  Supreme  Court,  this 
[l.  s.]         1 2th  day  of  January,  1886.  J.  D.  WURTS, 

Clerk. 

Indorsed: — "Granted  this  12th  day  of  January,  1886,  on  applica- 
tion of  Alonzo  Freeman.  A.  B.  PARKER, 

Justice  Supreme  Court.'''' 


ARTICLE  IX. 

Certiorari  to   Inquire  into   Cause  of   Detention. 
§§  2022,  2041,  2042,  2043. 

§  2022.     [Am'd,  1895.]     Form  of  writ  of  certiorari. 

The  writ  of  certiorari,  issued  as  prescribed  in  this  article,  must  be  substantially  in 
the  following  form,  the  blanks  being  properly  filled  up  : 
"  The  People  of  the  State  of  New  York, 
To  the  Sheriff  of,"  etc.  (or  "  to  A  B.") 

"We  command  you,  that  you  certify  fully  and  at  large,  to  ",  ("the 

Supreme  Court,  at  a  Special  Term  or  term  of  the  appellate  division  thereof,  to  be  held  ", 
or  "  E.  F.,  justice  of  the  Supreme  Court  ",  or  otherwise,  as  the  case  may  be,)  "  at 

,  on ",   [or  "  immediately  after  the  receipt  of  this  writ  ",] 

"  the  day  and  cause  of  the  imprisonment  of  C.  D.,  by  you  detained,  as  it  is  said,  by 
whatsoever  name  the  said  C.  D.  is  called  or  charged.  And  have  you  then  there  this 
writ ". 

"Witness, ,  one  of  the  justices",  (or  "judges")  "of  the  said  court", 

(or  "  county  judge  ",  or  otherwise,  as  the  case  may  be,)  "  the day  of 

,  in  the  year  eighteen  hundred  and ." 

§  2041.  When  certiorari  to  issue  on  application  for  habeas 
corpus. 

Where  an  application  is  made  for  a  writ  of  habeas  corpus,  as  prescribed  in  this 
article,  and  it  appears  to  the  court  or  judge,  upon  the  petition  and  the  documents 
annexed  thereto,  that  the  cause  or  offence,  for  which  the  party  is  imprisoned  or 
detained,  is  not  bailable,  a  writ  of  certiorari  may  be  granted,  instead  of  a  writ  of 
habeas  corpus,  as  if  the  application  had  been  made  for  the  former  writ. 

^  2042.  Proceedings  upon  its  return. 

Upon  the  return  to  such  a  writ  of  certiorari,  the  court  or  judge,  before  which  or 
whom  it  is  returnable,  must  proceed  as  upon  a  return  to  a  writ  of  habeas  corpus,  and 
must  hear  the  proofs  of  the  parties,  in  support  of  and  against  the  return. 


WRIT   OF   HABEAS   CORPUS.  I3I 

Art.  9.     Certiorari  to  Inquire  into  Cause  of  Detention. 

g  2043.  Id. ;  when  discharge  to  be  granted;  when  proceedings  to 
cease. 

If  it  appears,  that  the  prisoner  is  unlawful!}'  imprisoned  or  restrained  in  his 
liberty,  the  court  or  judge  must  make  a  final  order,  discharging  him  forthwith.  If 
it  appears  that  he  is  lawfully  imprisoned  or  detained,  and  is  not  entitled  to  be  bailed, 
the  court  or  judge  must  make  a  final  order,  dismissing  the  proceedings. 

The  use  of  the  writ  of  certiorari  is  to  enable  the  proceeding  to 
continue  without  the  presence  of  the  prisoner,  and  the  form  of 
the  writ  is  given  by  and  under  §  2022.  The  proceedings  are  the 
same  as  under  the  writ  of  habeas  corpus. 

The  writ  of  certiorari  to  inquire  into  the  cause  of  detention  is 
not  in  its  nature  essentially  a  writ  of  review.  The  writ  is  directed 
to  the  sheriff  or  the  person  having  the  prisoner  in  custody.  He 
is  required  to  return  to  the  judge  issuing  the  writ,  by  what  right 
he  holds  the  custody  of  the  person  detained.  Upon  this  require- 
ment he  returns  simply  the  commitment.  He  has  not  possession 
of  the  evidence  upon  which  the  commitment  was  granted.  He 
cannot  certify  any  such  evidence,  nor  is  he  required  so  to  do» 
Under  §  2041  if  the  offence  is  not  bailable,  upon  an  application 
for  a  writ  of  habeas  corpus^  the  court  or  judge  may  grant  a  writ 
of  certiorari.  Under  a  writ  of  certiorari  to  inquire  into  the  cause 
of  detention,  the  relator  is  entitled  to  no  other  or  greater  rights 
than  under  a  writ  of  habeas  corpus.  People  ex  rel.  Taylor  v.  Sea- 
man, 8  Misc.  153,  59  St.  Rep.  463,  29  Supp.  329. 

In  case  of  an  infant,  the  court  may  either  set  it  free  from 
restraint  or  commit  to  the  proper  custody.  People  ex  rel. 
V.  Kling,  6  Barb,  366  ;  People  ex  rel.  v.  Cooper,  8  How.  288  ; 
People  ex  rel.  v.  Olmstead,  27  Barb.  9.  Otherwise  an  order  of 
discharge  only  is  proper.  People  ex  rel.  v.  Porter,  I  Duer,  709. 
In  Ex  parte  Badgley,  7  Cow.  472,  a  prisoner  was  discharged  from 
one  only  of  two  causes  of  imprisonment  on  which  he  was  held. 

Under  §  2041,  if  the  offence  is  not  bailable  upon  an  application 
for  a  writ  of  habeas  corpus,  the  court  or  judge  may  grant  a  writ 
of  certiorari.  Under  the  writ  of  habeas  corpus,  the  body  of  the 
person  must  be  produced  :  if  the  offence  is  bailable,  the  court  may 
then  accept  bail.  If  the  offence  is  not  bailable  there  is  no  neces- 
sity of  the  presence  of  the  detained  person  upon  the  argument, 
and  a  writ  of  certiorari  may  be  issued  which  calls  for  precisely 
the  same  return  from  the  custodian,  but  does  not  bring  the  body 
of  the  detained  person.     Under  the  writ  then  the  same  questions 


132  WRIT   OF   HABEAS   CORPUS. 

Art.  9.     Certiorari  to  Inquire  into  Cause  of  Detention. 

arise,  the  same  facts  appear  for  determination,  and  the  same 
limitation  rests  upon  the  power  of  the  court  as  upon  a  writ  of 
habeas  corpus.  The  relator  has  gained  nothing  by  having  two 
writs.  Peo.  ex  rcl.  Taylor  v.  Seaman,^  Misc.  153,29  Supp.  331, 
59  St.  Rep.  463. 

It  was  not  intended  by  §  515  of  the  Code  of  Criminal  Pro- 
cedure to  make  any  change  in  the  practice  on  eertiorari  in  con- 
nection with  the  writ  of  habeas  eorpus,  and  as  no  provision  is 
there  made  for  proceedings  to  punish  for  contempt,  or  to  review 
any  order  made  for  such  proceedings,  the  practice  is  governed  by 
the  .same  procedure  as  applies  to  ordinary  cases  where  private 
rights  are  involved,  the  determination  to  which  may  be  reviewed 
by  means  of  a  writ  of  certiorari.  People  ex  rel.  Taylor  v.  Forbes, 
143  N.  Y.  219,  reversing  ']']  Hun,  612. 

Petition  for  a  Writ  of  Certiorari  to  Inquire  into  Cause  of  Deten- 
tion.    (143  N.  Y.  219.) 

To  Hon.  Walter  Lloyd  Smith,  one  of  the  Justices  of  the  Supreme  Court  of 
the  State  of  New  York  : 

This  petition  of  Frederick  L.  Taylor  respectfully  shows  : 

That  he  is  of  the  age  of  20  years  and  resides  in  Plainfield,  N.  J.,  but 
he  is  at  present  a  student  in  Cornell  University,  situate  in  the  city  of 
Ithaca,  N.  Y. 

That  he  is  now  a  prisoner  confined  in  the  custody  of  Charles  S.  Sea- 
man, sheriff  of  the  county  of  Tompkins  in  the  State  of  New  York,  and 
is  in  the  county  jail  of  said  county  of  Tompkins,  and  has  been  impris- 
oned in  said  jail  since  March  2 2d,  1894. 

The  petitioner  further  alleges  to  the  best  of  his  knowledge  that  he  is 
not  detained  by  virtue  of  any  mandate  issued  by  a  court  or  judge  of 
the  United  States  in  a  case  where  such  court  or  judges  have  exclusive 
jurisdiction  under  the  laws  of  the  United  States,  or  have  acquired  ex- 
clusive jurisdiction  by  the  commencement  of  legal  proceedings  in  such 
a  court ;  nor  by  virtue  of  a  final  judgment  or  decree  of  any  competent 
tribunal  of  civil  or  criminal  jurisdiction,  nor  by  a  final  order  of  such  a 
tribunal  made  in  any  proceedings  instituted  for  any  cause,  nor  by  virtue 
of  an  execution  or  other  process  issued  upon  such  a  judgment,  decree,  or 
final  order  other  than  as  stated  hereinafter  wherein  the  reasons  of  your 
petitioner's  impri-sonment  are  set  forth. 

The  cause  or  pretence  of  your  petitioner's  imprisonment  acccording  to 
the  best  knowledge  and  belief  of  your  petitioner  is  as  follows  : 

That  he  was  subpoenaed  and  appeared  as  a  witness  before  the  grand 
jury  now  in  session  in  the  county  of  Tompkins  to  give  evidence  in  an 
inquiry  there  pending  how  and  by  what  means  and  through  whom  one 
Henrietta  Jackson  came  to  her  death  in  the  city  of  Ithaca,  N.  Y.,  on  the 
night  of  the  20th  day  of  February,  1894. 


WRIT   OF   HABEAS   CORPUS.  I33 

Art.  9.     Certiorari  to  Inquire  into  Cause  of  Detention. 

That  your  deponent  was  sworn  as  a  witness  before  said  grand  jury 
and  examined  at  great  length  and  for  some  considerable  time  and 
answered  such  questions  as  were  asked  of  him  until  he  was  asked  to 
answer  certain  questions  the  answers  to  which  might  tend  to  criminate 
him  and  connect  him  with  the  commission  of  the  said  alleged  crime, 
which  questions  he  refused  to  answer,  giving  as  his  reasons  therefor  to 
said  grand  jury  that  he  refused  and  declined  to  answer  said  questions  on 
the  ground  that  his  answers  thereto  might  tend  to  criminate  himself,  and 
that  he  desired  to  put  himself  upon  the  privilege  which  the  constitution 
and  the  laws  of  the  State  of  New  York  gave  him,  and  before  said  grand 
jury  he  claimed  said  privilege  personal  to  himself,  whereupon  he  was 
adjudged  guilty  of  contempt  of  court  by  the  court  in  the  court-house 
in  the  city  of  Ithaca,  N.  Y.,  on  the  2 2d  day  of  March,  1894,  at  which 
court  the  Hon.  Gerrit  A.  Forbes,  one  of  the  justices  of  the  Supreme 
Court,  was  presiding,  and  a  commitment  was  issued  to  the  sheriff  of  the 
county  of  Tompkins  against  yotir  petitioner,  and  by  virtue  of  said  com- 
mitment your  petitioner  was  arrested  and  imprisoned,  and  is  now  by 
virtue  of  said  commitment  confined  in  the  common  jail  of  the  county  of 
Tompkins  in  the  keeping  of  Charles  S,  Seaman,  sheriff  of  Tompkins 
County. 

That  a  copy  of  this  commitment  is  hereto  annexed,  and  the  questions 
asked  deponent  which  he  refused  to  answer  for  the  reasons  hereinbefore 
stated  are  therein  included. 

That  deponent  refused  to  answer  these  questions  for  the  reason,  as 
was  stated  by  deponent  to  said  grand  jury  at  the  time,  that  his  answers 
might  tend  to  connect  deponent  with  the  commission  of  the  crime  and 
might  tend  to  criminate  him  if  deponent  should  not  refuse  to  answer 
these  questions  ;  and  deponent  claimed  the  privilege  which  the  constitu- 
tion and  the  laws  of  the  State  of  New  York  gave  him,  and  deponent's 
refusal  to  answer  was  for  no  other  or  different  reason  than  that  herein- 
before stated  by  him  to  the  grand  jury. 

Your  petitioner  further  shows  that  he  is  advised  by  his  counsel, 
John  B.  Stanchfield,  Esq.,  and  verily  believes,  that  his  imprisonment  is 
illegal  for  the  reasons  above  given,  and  that  the  said  grand  jury  had  no 
jurisdiction  to  inquire  into  the  matter  as  aforesaid. 

Your  petitioner  further  alleges  that  no  prior  or  other  application  for  a 
writ  of  certiorari  to  inquire  into  the  cause  of  your  petitioner's  detention 
has  been  made  to  any  court  or  judge. 

Wherefore,  your  petitioner  prays  that  a  writ  of  certiorari  may  forth- 
with issue  directed  to  Charles  S.  Seaman,  sheriff  of  Tompkins  County, 
commanding  him,  the  said  sheriff  of  Tompkins  County,  to  certify  fully 
and  at  large  to  a  justice  of  the  Supreme  Court  the  date  and  cause  of 
the  imprisonment  of  Frederick  L.  Taylor,  by  him  detained,  for  the  pur- 
pose of  inquiring  into  the  cause  of  such  imprisonment  and  detention 
of  your  petitioner,  and  to  the  end  that  he  may  be  discharged  from  con- 
finement. 

Dated,  March  23,  1894. 

FREDERICK  L.  TAYLOR. 

{Add  verification  hereto.^ 


134  WRIT   OF   HABEAS   CORPUS. 

Art.  9.     Certiorari  to  Inquire  into  Cause  of  Detention. 

Writ  of  Certiorari  to  Inquire  into  Cause  of  Detention. 

(143  N.  Y.  219.) 

The  People  of  the  State  of  Neiv  York,  to  Charles  S.  Seaman,  Sheriff  of 
the  County  of  Tompkins  in  the  State  of  Neiu  York  : 

We  command  you  that  you  certify  fully  and  at  large  to  Hon.  Walter 
Lloyd  Smith,  one  of  the  justices  of  the  Supreme  Court  of  the  State  of 
New  York,  at  the  court-house  in  the  village  of  Watkins,  Schuyler 
County,  N.  Y.,  on  the  26th  day  of  March,  1894,  at  2  o'clock  in  the 
afternoon  of  that  day,  the  date  and  cause  of  the  imprisonment  of 
Frederick  L.  Taylor,  by  you  detained,  it  is  said,  by  whatsoever  name 
the  said  Frederick  L.  Taylor  is  called  or  charged,  and  have  you  then 
and  there  this  writ. 

Witness,  Hon.  Walter  Lloyd  Smith,  Justice  of  the  Supreme  Court  of 
the  State  of  New  York  at  Elmira,  Chemung  County,  N.  Y.,this  24th  day 
of  March,  1894. 

D.  N.  HELLER, 

Clerk. 


Return  to  Writ  of  Certiorari  to  Inquire  into  Cause  of  Deten- 
tion.    (143  N.  Y.  219.) 

SUPREME  COURT. 


The  People  of  the  State  of  New  York  ex  ret. 
Frederick  L.  Taylor, 

agst. 

Gerrit  A.  Forbes,  a  Justice  of  the  Supreme 
Court  of  the  State  of  New  York  of  the  Sixth 
Judicial  District,  and  of  the  Court  of  Oyer 
and  Terminer  in  the  County  of  Tompkins,  and 
said  State. 


To  the  County  Clerk  of  the  County  of  Tompkins  : 

The  return  of  Gerrit  A.  Forbes,  justice  of  the  Supreme  Court  of  the 
State  of  New  York,  and  of  the  Court  of  Oyer  and  Terminer  of  the 
county  of  Tompkins,  in  obedience  to  the  writ  of  certiorari  hereto 
annexed  : 

I  hereby  certify  and  return  that  on  the  2 2d  day  of  March,  1894,  the 
relator,  Frederick  L.  Taylor,  was  duly  subpcenaed  and  appeared  as  a 
■witness  before  the  grand  jury  of  the  county  of  Tompkins  in  a  matter 
then  and  there  and  by  said  grand  jury  being  under  investigation,  relative 
to  a  crime  committed  in  the  county  of  Tompkins,  said  grand  jury  being 
duly  in  attendance  at  the  Court  of  Oyer  and  Terminer  then  and  there 
being  held  in  the  said  county  of  Tompkins,  and  at  which  this  defendant 
was  presiding  ju.stice  ;  and  he,  the  said  Frederick  L.  Taylor,  having 
appeared  before  and  in  the  presence  of  said  grand  jury,  and  having  then 


WRIT   OF   HABEAS   CORPUS.  1 35 

Art.   lo.     Appeal. 

and  there  wilfully  and  unlawfully  and  contumaciously  refused  to  answer 
certain  pertinent  and  lawful  interrogatories  relating  to  a  matter  then 
being  investigated  by  said  grand  jury,  1,  under  and  by  virtue  of  provi- 
sions of  §  8  of  the  Code  of  Civil  Procedure,  did  adjudge  and  declare 
ihe  said  Frederick  L.  Taylor  guilty  of  criminal  contempt  in  so  refusing 
to  answer  said  interrogatories,  and  did  commit  the  said  Frederick 
L.  Taylor  to  the  custody  of  the  sheriff  of  Tompkins  County,  by  him  to 
be  confined  in  the  jail  of  the  said  county  of  Tompkins  until  purged  of 
his  contempt,  for  a  period  not  exceeding  thirty  days  ;  that  thereupon  a 
mandate  or  order  was  duly  entered  and  filed  in  said  Court  of  Oyer  and 
Terminer  so  committing  the  said  Frederick  L.  Taylor  as  aforesaid, 
which  said  mandate  or  order  is  hereto  annexed  and  made  a  part  of  this 
return. 

And  I  do  further  certify  that  I  have  caused  to  be  annexed  hereto  all 
mandates,  orders,  testimony,  records,  and  proceedings  of  every  name  and 
nature  relating  to  or  bearing  upon  the  commitment  and  detention  of 
said  Frederick  L.  Taylor  as  aforesaid  of  which  I  have  any  knowledge  or 
notice,  which  said  orders,  mandates,  testimony,  records,  or  proceedings 
are  made  part  of  this  return. 

All  of  which  I  hereby  certify  and  return  as  commanded  by  said 
writ  and  directed  by  statute. 

In  witness  whereof  the  undersigned  has  hereunto  set  his  hand  this 
2 1  St  day  of  April,  1894. 

QERRIT  A.  FORBES, 
Justice  of  the  Supreme  Court  of  the  State  of  New  York  of 
the  Sixth  Judicial  District  and  of  the  Court  of  Oyer 
and  Terminer  for  the   County  of  Totnpkins  and  said 
State. 


ARTICLE   X. 

Appeal.     §§  2058,  2059,  2060,  2061,  2062,  2063,  2064. 

§  2058.  "When  appeal  may  be  taken  in  cases  under  this  article. 

An  appeal  may  be  taken  from  an  order  refusing  to  grant  a  writ  of  habeas  corpus 
or  a  writ  of  certiorari,  as  prescribed  in  this  article,  or  from  a  final  order,  made  upon 
the  return  of  such  a  writ,  to  discharge  or  remand  a  prisoner,  or  to  dismiss  the  pro- 
ceedings. Where  the  final  order  is  made,  to  discharge  a  prisoner,  upon  his  giving 
bail,  an  appeal  therefrom  may  be  taken,  before  bail  is  given  ;  but  where  the  appeal 
is  taken  by  the  people,  the  discharge  of  the  prisoner  upon  bail  shall  not  be  stayed 
thereby.  An  appeal  does  not  lie,  from  an  order  of  the  court  or  judge,  before  which 
or  whom  the  writ  is  made  returnable,  except  as  prescribed  in  this  section. 

§  2059.  Id. ;  by  people. 

.A.n  appeal  from  a  final  order,  discharging  a  prisoner  committed  upon  a  criminal 
accusation,  or  from  the  affirmance  of  such  an  order,  maybe  taken,  in  the  name  of  the 
people,  by  the  attorney-general  or  the  district  attorney. 

See  §§  1356-1361,  2121. 


136  WRIT   OF   HABEAS   CORPUS. 

Art.    10.     Appeal. 

§  2060.  Prisoner  who  appeals  may  be  admitted  to  bail. 

Where  a  prisoner,  who  stands  charged,  upon  a  criminal  accusation,  with  a  bailable 
offence,  has  perfected,  or  intends  to  tal:e,  an  appeal  from  a  final  order  dismissing  the 
proceedings,  remanding  him,  or  otherwise  refusing  to  discharge  him,  made  as  pre- 
scribed in  this  article,  the  court  or  judge,  upon  his  application,  either  before  or  after 
the  final  order,  must,  upon  such  notice  to  the  district  attorney  as  the  court  or  judge 
thinks  proper,  make  an  order,  fixing  the  sum  in  which  the  applicant  shall  be  admitted 
to  bail,  pending  the  appeal  ;  and  thereupon,  when  his  appeal  is  perfected,  he  must 
be  admitted  to  bail  accordingly. 

L.  1873,  ch.  663,  part  of  §  i  (9  Edm.  704). 

§  2061.     [Am'd,  1895.]    Id. ;  recognizance,  etc. 

The  recognizance  for  that  purpose  must  be  conditioned,  that  the  prisoner  will 
appear,  at  a  term  of  the  appellate  division  of  the  Supreme  Court  to  be  held  at  a  time 
and  place  designated  in  the  order,  and  abide  by  and  perform  the  judgment  of*  order 
of  the  appellate  court.  It  must  be  taken  and  approved  by  a  justice  of  the  Supreme 
Court,  or  by  the  court  or  judge  from  whose  order  the  appeal  is  taken,  or  by  the 
county  judge  of  the  county  in  which  the  order  was  made.  In  all  other  respects,  the 
proceedings  are  the  same  as  prescribed  in  this  article,  where  it  appears,  upon  the  re- 
turn of  a  writ  of  certiorari,  that  the  prisoner  is  entitled  to  be  admitted  to  bail. 

§  2062.     [Am'd,  1895.]    Id.;    on  appeal  to  Court  of  Appeals. 

When  a  prisoner,  who  stands  charged  with  an  offence,  specified  in  the  last  section 
has  perfected  an  appeal,  to  the  Court  of  Appeals,  from  a  final  order  of  the  Supreme 
Court,  affirming  an  order  refusing  his  discharge,  or  reversing  an  order  granting  his 
discharge  ;  the  court,  from  whose  order  the  appeal  is  taken,  or  a  judge  thereof, 
must,  upon  his  application,  admit  him  to  bail,  as  prescribed  in  the  last  section  ;  ex- 
cept that  the  recognizance  must  be  conditioned  to  appear,  at  a  term  of  the  appellate 
division  of  the  Supreme  Court  from  which  the  appeal  is  taken,  to  abide  by  and  per- 
form its  judgment  or  order,  made  after  the  determination  of  the  appeal. 

L.  1873,  ch.  663,  part  of  §  i,  am'd  ;  L.  1895,  ch.  946. 

§  2063.  Custody  of  prisoner  until  he  gives  bail. 

Where  the  sum,  in  wliich  a  prisoner  shall  be  admitted  to  bail,  has  been  fixed,  as 
prescribed  in  either  of  the  last  two  sections,  he  must  remain  in  the  custody  of  the 
sheriff  of  the  county  in  which  he  then  is,  until  he  is  admitted  to  bail,  as  therein  pre- 
scribed ;  or,  if  he  does  not  give  the  requisite  bail,  until  the  time  to  appeal  has  expired 
or  the  appeal  is  disposed  of,  and  the  further  direction  of  the  court,  made  thereupon. 

Remainder  of  same  section,  am'd. 

§  2064.     [Am'd,  1895.]    Recognizance  valid  for  adjourned  terms. 

Where  no  order  or  other  direction  of  the  court,  relating  to  the  disposition  of  the 
prisoner,  is  made  at  the  term  specified  in  a  recognizance,  given  as  prescribed  in 
§  2061  or  §  2062  of  this  act,  the  matter  is  deemed  adjourned,  without  an  order 
to  that  effect,  to  the  next  term  of  the  appellate  division  of  the  Supreme  Court, 
to  be  held  in  the  same  department  ;  and  thereafter  to  each  successive  term,  until  such 
an  order  or  direction  is  made.  The  prisoner  is  bound  to  attend  at  each  successive 
term  of  the  appellate  division  ;  and  the  recognizance  is  valid  for  his  attendance 
accordingly,  without  any  notice  or  other  formal  proceeding. 

An  order  directing  a  further  return  to  a  writ  of   habeas  corpus 
or  certiorari,  issued  under  the  Code  of    Civil  Procedure,  ^§  2015 

*  So  in  the  original. 


WRIT   OF   HABEAS   CORPUS.  1 37 

Art.   lo.     Appeal. 

et  seq.,  to  inquire  into  the  cause  of  detention  of  a  person,  is 
not  appealable  under  §  2058  ;  and  the  General  Term  of  the 
Supreme  Court  has  no  authority  to  review  it,  and  where  upon  an 
appeal  from  an  order  of  the  General  Term  reversing  such  an 
order,  the  appeal  papers  did  not  show  that  the  objection  to  its 
jurisdiction  was  raised  before  that  court ;  Jicld,  that  it  could  be 
raised  in  the  Court  of  Appeals.  Matter  of  La?'son,  96  N.  Y. 
381,  reversing  31  Hun,  539.  Where  the  court  has  directed  a 
reference  in  habeas  corpus  proceedings  an  appeal  will  not  lie  from 
the  order,  not  only  because  the  reference  is  for  the  information 
of  the  court,  but  also  the  order  does  not  present  one  of  the  cases 
appealable  under  §  2058.  Peo.  ex  rel.  Kcator  v.  Moss,  6  App. 
414. 

An  order  made  by  a  county  judge  in  habeas  corpus  proceedings 
discharging  the  prisoner  from  custody,  cannot  be  reviewed  on 
certiorari.  Section  357  provides  for  appeals  from  orders  made  in 
special  proceedings;  §  2058  provides  that  an  appeal  may  be  taken 
from  the  final  order  made  upon  the  return  of  the  writ  of  habeas 
corpus  to  discharge  or  remand  the  prisoner;  and  §  2122  provides 
that  certiorari  cannot  issue  to  review  a  determination  that  can 
be  adequately  reviewed  by  an  appeal.  People  ex  rel.  Catlin  v. 
Tucker,  3  Supp.  792,  16  Civ.  Pro.  128. 

Where  a  return  on  habeas  corpus  shows  that  the  prisoner  is  de- 
tained by  virtue  of  an  execution  issued  upon  the  judgment  of  a 
court,  made  in  an  action  in  which  the  court  confessedly  had 
jurisdiction,  the  writ  should  be  dismissed  and  the  prisoner  re- 
manded.    People  ex  rel.  Crane  v.  Grant,  13  Civ.  Pro.  209. 

The  custodian  of  a  prisoner  should  not  be  allowed  in  ordinary 
criminal  cases  to  maintain  an  appeal  from  an  order  discharging 
the  prisoner  from  imprisonment,  if  the  appeal  is  opposed  by  the 
prosecuting  authorities  representing  the  people.  The  mere  fact 
that  he  is  a  party  to  the  writ  and  is  denominated  a  defendant  in 
the  Code  does  not  give  him  a  right  to  appeal  where  he  has  no 
interest  in  the  subject-matter.  Matter  of  Quinn,  2  App.  Div. 
103,  25  Civ.  Pro.  226,  citing  People  ex  rel.  Breslin  v.  LawrencCy 
107  N.  Y.  607. 

One  committed  for  contempt  may  prosecute  an  appeal  from 
the  order  of  commitment  though  he  has  been  discharged  on 
habeas  corpus.     Gallagher  v.  O' Neil,  3  Supp.  126,   21  St.  Rep.  161. 

On  appeal  to  the  General  Term  from  the  order  of  the  Special 


WRIT   OF   HABEAS   CORPUS. 


Art.   lo.     Appeal. 


Term  dismissing  a  writ  of  habeas  corpus,  requiring  defendant  to 
produce  an  infant,  the  order  was  reversed  and  proceedings  remit- 
ted to  the  Special  Term  for  a  new  hearing.  On  such  hearing  an 
order  was  made  remanding  the  infant  to  the  custody  of  relator. 
A  motion  was  thereupon  made  to  set  aside  such  order  on  the 
ground  that  the  Special  Term  had  no  jurisdiction  to  make  it, 
which  motion  was  denied.  Held,  that  the  order  thereon  was  not 
reviewable  in  the  Court  of  Appeals,  if  without  jurisdiction  it  was 
within  the  discretion  of  the  court  to  set  it  aside,  or  leave  the 
defendant  to  set  up  its  invalidity  when  an  attempt  should  be 
made  to  enforce  it.  People  ex  rel.  Brush  v.  Brown,  103  N.  Y. 
684. 

The  appeal  is  taken  in  the  usual  form  and  proceeds  as  on  other 
appeals.  In  case  where  the  provisions  of  ^  2038  apply,  the  title 
of  the  cause  on  appeal  may  be  changed  by  the  addition  of  the 
name  of  the  interested  party. 

In  People  of  the  State  of  New  York  ex  rel.  Sinkler  v.  Terry, 
42  Hun,  273,  5  State  Rep.  120.  it  was  held  that  the  appeal  hav- 
ing been  taken  to  the  General  Term  in  the  name  of  the  people, 
under  §  2059,  and  the  order  of  the  lower  court  affirmed,  the  costs 
should  be  paid  by  the  county  from  which  the  appeal  is  taken. 

The  power  of  an  appellate  court  to  remit  a  case  for  the  resen- 
tence of  a  prisoner  where  the  judgment  is  void  but  the  convic- 
tion proper,  is  limited  to  cases  where  the  conviction  is  had  upon 
an  indictment,  and  no  power  exists  to  remit  a  case  for  resentence 
to  a  court  of  special  sessions,  such  court  not  being  a  court  of 
record.     People  v.  Carter,  14  Civ.  Pro.  241,  48  Hun,  165. 

Where  upon  hearing  on  habeas  corpus  before  a  justice  of  the 
Supreme  Court,  the  relator  was  remanded  to  custody  and  the 
General  Term  on  certiorari  directed  to  said  justice  as  such,  re- 
versed the  order  and  directed  the  discharge  of  the  prisoner  ;  Jield, 
that  said  justice  was  not  the  proper  person  to  take  an  appeal  to 
the  Court  of  Appeals,  that  the  decision  affected  no  substantial 
right  of  his  within  the  meaning  of  the  Code  of  Civil  Procedure 
or  of  any  person  of  whom  lie  was  the  legal  representative  or 
agent.  It  seems  the  appeal  in  such  case  should  be  in  the  name 
of  the  people  by  the  attorney-general  or  district  attorney 
under  §  2059.  People  ex  rel.  Brcslin  v.  Lawrence,  107  N.  Y. 
607. 

Where,  in  proceedings  by  habeas  corpus,  instituted  by  a  guar- 


WRIT   OF   HABEAS   CORPUS.  1 39 

Art.    lo.     Appeal. 

dian  to  obtain  the  custody  of  a  child  of  about  seven  years, 
from  one  in  whose  custody  the  child  had  been  placed  in  accord- 
ance with  the  wishes  of  its  mother  expressed  prior  to  her  death, 
and  the  order  appealed  from  dismissed  the  writ  without  preju- 
dice to  other  proceedings ;  held,  that  the  order  was  not  a  final 
adjudication  as  to  the  legal  rights  of  the  relator,  and  rested  in 
the  discretion  of  the  court,  and  so  was  not  reviewable.  People 
£x  rel.  Pruyne  v.  Walts,  122  N.  Y.  238,  33  St.  Rep,  231. 

An  order  made  by  a  special  county  judge  declaring  that  the 
rendition  warrant  of  the  Governor  is  invalid  and  discharging  the 
defendant,  is  appealable  to  the  General  Term,  and  such  appeal  is 
properly  taken  by  the  attorney-general  by  service  of  the  notice 
of  appeal  on  the  clerk  and  the  attorneys  for  the  defendant. 
Matter  of  Scrafford,  36  St.  Rep.  748,  59  Hun,  323,  12  Supp.  945. 

Precedent  for  Recognizance  on  Appeal  from  Order  Denying  Writ. 

County  of  Ulster,  ss.  .- 

Be  it  remembered,  that  on  the  1 2th  day  of  March,  Patrick  Larkin,  John 
Larkin,  merchant,  and  James  Larkin,  mechanic,  all  of  the  city  of  King- 
ston, in  the  county  of  Ulster,  personally  appeared  before  the  Supreme 
Court  at  a  Special  Term  thereof,  held  in  the  city  of  Kingston,  and 
severally  and  respectively  acknowledged  themselves  indebted  to  the 
people  of  the  State  of  New  York  in  the  sum  of  ^2,000,  to  be  levied  of 
their  respective  goods  and  chattels,  lands  and  tenements,  to  the  use  of 
the  said  people,  if  default  shall  be  made  in  the  condition  following : 

Wherkas,  The  above-bounden  Patrick  Larkin  is  in  the  custody  of 
the  sherifif  of  Ulster  County,  under  a  commitment  made  by  the  recorder 
of  the  city  of  Kingston,  on  a  charge  of  manslaughter ;  and 

Whereas,  An  application  has  been  made  on  behalf  of  said  Patrick 
Larkin  for  a  writ  of  habeas  corpus,  and  the  prisoner  has  been  brought 
up  and  a  hearing  had  and  the  proceedings  dismissed,  and  said  Patrick 
Larkin  remanded  ;  and 

Whereas,  An  appeal  has  been  taken  by  him  from  said  final  order 
remanding  the  proceedings  on  habeas  corpus,  and  an  order  granted  ad- 
mitting him  to  bail  pending  said  appeal :  Now,  therefore,  the  condition 
of  this  recognizance  is  such  that  if  the  said  Patrick  Larkin  shall  appear 
at  a  General  Term  of  the  Supreme  Court,  to  be  held  at  the  City  Hall  in 
the  city  of  Albany,  on  the  3d  day  of  May,  1887,  and  abide  by  and  per- 
form the  judgment  of  the  appellate  court  on  said  appeal,  then  this  rec- 
ognizance to  be  void,  otherwise  to  remain  in  full  force  and  effect. 

(Signatures.) 
Taken,  subscribed  and  acknowledged,  and  approved  ) 
before  me  this  12th  day  of  March,   1887.  ) 

A.  B.  PARKER, 

Justice  Supreme  Court. 


T40  WRIT   OF   HABEAS   CORPUS. 

Art.    lo.     Appeal. 

Order  Fixing  Bail. 

At  a  Special  Term       the  Supreme  Court  held  in  and  for  the  county  of 
Ulster,  at  the  court-house  in  Kingston,  on  the  1 2th  day  of  March,  1887  : 

Present : — Hon.  Alton  B.  Parker,  Justice. 


In  the   Matter   of  the    Application  of    Patrick  [ 
Larkin  for  a  writ  of  habeas  corpus.  | 

. J 


A  writ  of  habeas  corpus  having  been  heretofore  issued  on  the  applica- 
tion of  Patrick  Larkin,  and  the  said  Patrick  Larkin  having  been  brought 
before  the  court,  pursuant  to  the  command  of  said  writ  and  after  hearing 
had,  the  proceedings  on  said  writ  having  been  dismissed  by  final  order 
and  the  said  Patrick  Larkin  remanded :  Now,  after  hearing  Charles  A. 
Fowler,  Esq.,  for  the  prisoner,  on  behalf  of  the  application,  and  J.  N. 
Vanderlyn,  district  attorney,  opposed,  and  it  appearing  that  the  said 
Larkin  is  accused  of  a  bailable  offence,  to  wit,  the  crime  of  man- 
slaughter, and  that  the  said  Larkin  has  taken  an  appeal  from  the  said 
final  order  dismissing  the  proceedings  on  habeas  corpus,  it  is  ordered  that 
the  said  Patrick-Larkin  be  admitted  to  bail  pending  such  appeal  in  the 
sum  of  $2,000,  and  that  he  be  discharged  upon  perfecting  such  bail. 

Indorsed : — "  Granted  at  within  term. 

"  J.  D.  WURTS, 

"  Clerkr 


CHAPTER  V. 

MANDAMUS.* 

PAGE. 

Article  i.  Nature  of  the  writ  ;  when  and  against  whom  allowed.  .  142 

2.  By   what   court  writ  may    be  granted.     §§   2068-69..  ^^^ 

3.  Alternative    and    peremptory    writs.      §    2067 191 

4.  Peremptory  writ  and  return   thereto.      §§    2070,   2072, 

2075,  2073,  2074 204 

5.  Alternative   writ    and   proceedings   thereon.     §§   2067, 

2076;  2071,  2075,  2077,  2072,  2074,   2078,  2080,  2081, 
2079,  2082,  2083,  2085,  2084 227 

6.  Defences  to  mandamus 260 

7.  Stay  of   proceedings;   damages   and    fines.     §§   20S9, 

2088,  2090 265 

8.  Costs;  appeals;  proceedings  for  contempt.      §§  2086, 

2087 269 

Sections  of  the  Code  and  Where   Found  in  this   Chapter. 

SEC.  ART.  PAGB. 

2067.  Kinds  of  writ ;  how   alternative  writ  granted 3'  5      '9''  227 

206S.   When  writ  granted  at  special    term 2  186 

2069.  Id.;  at  term  of  the  appellate  division  of  the  supreme  court. .  2  186 

2070.  When  peremptory  mandamus  to  issue  in  first  instance   4  204 

2071.  Alternative  writ;  how   served 5  232 

2072.  Writ ;  how   returnable 4<  5      223,  232 

2073.  Return  or  demurrer  to  first  writ 4  223 

2074.  Return ;    how  made 4>  5      223,  232 

2075.  Motion  to  set  aside  writ 4'  5      223,  233 

2076.  Contents  of  alternative  writ ;    demurrer  thereto 5  231 

207  7.  Form  and  contents   of  return 5  232 

2078.  Further  return  cannot  be  compelled;    demurrer  to  return 5  232 

2079.  Issue  of  fact ;    when  it  arises 5  241 

2080.  Application  of  certain  provisions  of   chapter  sixth 5  240 

2081.  Service  of  notice  of  filing   return  and  demurrer 5  241 

2082.  Subsequent   proceedings  the  same  as  in  an  action 5  241 

2083.  Issue  of  fact  ;    how  triable 5  241 

20S4.  Id. ;  where  triable 5  241 

2085.  Issue  of  law  upon  General  Term  mandamus  ;   how  and  where 

triable 5  242 

2086.  Costs 8  269 

2087.  Appeals S  272 

*  This  subject  is  treated  in  High  on  Extraordinary  Legal  Remedies,  Spelling  on 
Extraordinary  Relief,  Wood  on  Mandamus,  Merrill  on  Mandamus,  Moses  on  Manda- 
mus. Short  on  Extraordinary  Legal  Remedies,  article  "  Mandamus,"  American  and 
English  Encyclopedia  of  Law,  and  valuable  notes  on  the  subject  are  also  contained 
in  Lawyers'  Reports  Annotated,  vols,  i,  3,  8,  12,  and  13  respectively. 

141 


142  MANDAMUS. 


Art,   I.     Nature  of  the  Writ ;  When  and  Agains*  Whom  Allowed. 

SBC.                                                                                                                                                                                                                             ART.  PAGE. 

2088.  When  relator  to  recover  damages 7  265 

2089.  Stay  of  proceedings  ;  enlargement  of  time 7  265 

2oqo.   Fine  in  certain  cases 7  265 


ARTICLE  I. 

Nature  of  the  Writ  ;  When  and  Against  Whom 
Allowed. 

Sua    I.  Writ  defined. 

2.  Purpose  of  the  writ  ;  when  it  lies. 

3.  When  granted  against  state  officers. 

4.  When  granted  against  county  officers. 

5.  When  granted  against  town  and  village  officers. 

6.  When  granted  against  municipal  corporations,  city  officers,  and 

boards. 

7.  When  granted  against  election  officers. 

8.  When  granted  against  private  corporations  and  associations. 

9.  When  granted  to  control  right  to  public  office. 

10.  When  granted  in  matters  relating  to  taxation. 

11.  When  granted  to  compel  action  by  inferior  tribunals. 

Sub.   I.  The  Writ  Defined. 

The  writ  of  mandamus  is  a  command  issuing  from  a  court  of  law 
of  competent  jurisdiction  in  the  name  of  the  State  or  sovereign 
directed  to  some  inferior  court,  ofificer,  corporation,  or  person, 
requiring  them  to  do  some  particular  thing  therein  specified  and 
which  appertains  to  their  ofifice  or  duty.  3  Blackstone,  Com. 
no,  4  Bacon,  Abr.  495,  American  and  English  Encyc.  of  Law, 
vol.  14,  page  91.  It  is  the  proper  remedy  when  the  party  has  a 
clear  right  and  no  other  appropriate  redress  in  order  to  prevent 
a  failure  of  justice.  Rex  v.  Barker,  Burr.  1267,  where  Lord 
Mansfield  defined  it  as  a  writ,  "  to  the  aid  of  which  the  subject 
is  entitled  upon  a  proper  case  previously  shown  to  the  satisfac- 
tion of  the  court."  In  Ex  parte  Crane,  5  Peters,  190,  it  is  said 
that  in  England  the  writ  is  a  command  issuing  in  the  King's 
name,  directed  "  to  any  persons,  corporation  or  inferior  court  of 
judicature  within  the  King's  dominion,  requiring  them  to  do 
some  particular  thing  therein  specified  which  appertains  to  their 
office  and  duty,  and  which  the  court  has  determined  to  be  con- 
sonant to  right  and  justice." 

The  practice  has  been  very  greatly  modified  in  this  country 
and  is  thus  described  by  a  leading  American  text  writer:  "  The 


MANDAMUS.  143 


Art.    I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

modern  writ  of  mandamus  may  be  defined  as  a  command  issuing 
from  a  common-law  court  of  competent  jurisdiction  in  the  name 
of  the  State  or  sovereign  to  some  corporation,  officer,  or  inferior 
court,  requiring  the  performance  of  a  particuhir  duty  therein 
specified,  which  duty  results  from  the  official  station  of  the  party 
to  whom  the  writ  is  directed  or  from  operation  of  law."  High 
on  Extraordinary  Remedies,  4.  A  mandamus  is  said  by  Chief 
Justice  Marshall  to  be  a  suit  within  the  meaning  of  the  Constitu- 
tion, for  it  is  a  litigation  of  a  right  in  a  court  of  justice.  Weston 
V.  Charleston,  2  Pet.  449  ;  Holmes  v.  Jennison,  14  Pet.  540.  Taney, 
C.  J.,  said  in  CommonivealtJi  v.  Dennison,  24  How.  ^()  :  "  It  is  well 
settled  that  a  mandamus  in  modern  practice  is  nothing  more  than 
an  action  at  law  between  the  parties,  and  it  is  not  now  regarded 
as  a  prerogative  writ.  It  undoubtedly  came  into  use  by  virtue 
of  the  prerogative  power  of  the  English  crown  and  was  subject 
to  regulations  and  rules  which  have  long  since  been  disused. 
But  the  right  to  the  writ  and  the  power  to  issue  it  have  ceased 
to  depend  upon  any  prerogative  power,  and  it  is  now  regarded 
as  an  ordinary  process  in  cases  to  which  it  is  applicable." 

Mandamus  is  an  extraordinary  remedy,  and  the  power  to 
entertain  it  has  been  exercised  only  in  the  past  by  the  higher 
courts  of  common-law  jurisdiction,  where  it  properly  belongs. 
People  ex  rel.  v.  Board  of  Excise,  3  State  Rep.  253.  This  writ  it 
has  often  been  said  will  not  be  granted  in  doubtful  cases,  but  it 
is  questionable  whether  this  now  means  more  than  that  there 
must  be  a  clear,  legal  right  to  relief,  and  no  other  adequate 
remedy.  In  cases  where  it  is  applicable  these  considerations  are 
the  test  to  be  applied.     People  v.  Thompson,  25  Barb.  73. 

Vann,  J.,  thus  states  the  object  of  the  writ  in  People  ex  reL 
Harris  v.  Coviniissioners,  149  N.  Y.  30,  reversing  90  Hun,  525  : 
"  The  primary  object  of  the  writ  of  mandamus  is  to  compel 
action.  It  neither  creates  nor  confers  power  to  act,  but  only  com- 
mands the  exercise  of  powers  already  existing,  when  it  is  the 
duty  of  the  person  or  body  proceeded  against  to  act  without  its 
agency.  While  it  may  require  the  performance  of  a  purely  min- 
isterial duty  in  a  particular  manner,  this  command  is  never  given 
to  compel  the  discharge  of  a  duty  involving  the  exercise  of  judg- 
ment or  discretion,  in  any  specified  way,  for  that  would  substitute 
the  judgment  or  discretion  of  the  court  issuing  the  writ  for  that 
of  the  person  or  persons  against  whom  the  writ  was  issued.     In 


144  MANDAMUS. 


Art.    I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

such  cases  its  sole  function  is  to  set  in  motion,  without  direct- 
ing the  manner  of  performance.  .  ,  .  When  the  law  requires  a 
public  officer  to  do  a  specified  act,  in  a  specified  way,  upon  aeon- 
ceded  state  of  facts,  without  regard  to  his  own  judgment  as  to 
the  propriety  of  the  act,  and  with  no  power  to  exercise  discretion, 
the  duty  is  ministerial  in  character,  and  performance  may  be 
compelled  by  mandamus,  if  there  is  no  other  remedy ;  when, 
however,  the  law  requires  a  judicial  determination  to  be  made, 
such  as  a  decision  of  a  question  of  fact  or  the  exercise  of  judg- 
ment in  deciding  whether  the  act  should  be  done  or  not,  the  duty 
is  regarded  as  judicial  and  mandamus  will  not  lie  to  compel  per- 
formance." 

Sub.   2.  Purpose  of  the  Writ  and  When  it  Lies. 

The  following  principles  are  applicable  to  the  granting  or  refus- 
ing of  a  writ  of  mandamus  as  laid  down  in  People  ex  rel.  The  Gas 
Light  Co.  of  Syracuse  v.  The  Common  Council  of  Syracuse,  78 
N.  Y.  56:  "  Although  the  granting  or  refusal  of  a  writ  of  man- 
damus is  regarded  as  discretionary,  as  distinguished  from  a 
writ  of  right,  it  is  not  an  absolute  or  arbitrary  discretion, 
but  is  to  be  exercised  under,  and  may  be  regulated  and  con- 
trolled by,  legal  rules,  and  the  exercise  of  the  discretion  is 
reviewable  here.  Where  the  writ  is  refused,  and  it  appears 
that  there  is  a  clear  legal  right,  and  that  there  is  no  other 
adequate  remedy,  the  order  or  judgment  may  be  reversed. 
Where  the  relator  has  for  an  unreasonable  time  slept  upon  his 
rights,  the  court  may  refuse  the  writ.  In  determining  what  will 
constitute  such  unreasonable  delay,  regard  should  be  had  to  cir- 
cumstances justifying  the  delay,  to  the  nature  of  the  case,  the 
relief  demanded,  and  to  the  question  whether  the  rights  of 
defendant  or  other  persons  have  been  prejudiced  by  the  delay." 
Cited,  People  ex  rel.  King  v.  Gallagher,  93  N.  Y.  466  ;  People  ex 
rel.  Millard  v.  Chapin,  104  N.  Y.  99.  In  the  former  of  these 
cases  it  is  said  that  the  court  has  no  discretion  to  exercise  where 
the  writ  affords  the  only  adequate  remedy  ;  in  the  latter  that  the 
discretion  of  the  court  to  grant  or  refuse  the  writ  is  not  absolute 
but  governed  by  legal  rules  and  its  discretion  is  subject  to  review. 

That  the  writ  is  discretionary  and  that  the  court  should  exer- 
cise a  sound  discretion  with  reference  to  granting  it  is  held  in 
People  ex  rel.   Neio    York    Underground  Ry.   Co.  v.  Newton,  126 


MANDAMUS.  145 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


N.  Y.  656,  citing  Matter  of  Sage,  70  N.  Y.  220  ;  People  ex  rel. 
Slavin  v.  Wendell,  71  N.  Y.  171  ;  People  ex  rel.  Faile  v.  Ferris,  76 
N.  Y.  326  ;  People  ex  rel.  Nichol  v.  Nezv  York  Infant  Asylum,  122 
N.  Y.  190;  and  also  People  ex  rel.  Gas  Light  Co.  v.  Common 
Couneil  of  Syraetise,  78  N.  Y.  56  ;  People  v.  Chapin,  104  N.  Y. 
96,  supra. 

To  entitle  a  party  to  a  writ  of  mandamus,  he  must  be  dispos- 
sessed of  a  clear  legal  right  to  have  exercised  an  office  or  fran- 
chise or  to  have  a  service  performed  by  the  party  to  whom  he 
seeks  to  have  the  writ  directed,  and  must  be  without  a  legal 
remedy  to  which  he  can  resort  to  compel  the  performance  of  the 
duty.  Bayard  v.  C/nited  States,  127  U.  S.  246  ;  Ex  parte  Hughes, 
114  U.  S.  147;  People  ex  rel.  Mott  v.  Supervisors  of  Green,  64 
N.  Y.  600  ;  People  v.  Hayt,  66  N.  Y.  606  ;  People  v.  Brooklyn,  i 
Wend.  318;  People  v.  Siipervisors  of  New  York,  18  Abb.  8  ;  Peo- 
J>le  v.  Easton,  13  Abb.  N.  S.  159;  Clark  v.  Miller,  47  Barb.  38  ; 
People  V.  Supervisors  of  Green,  12  Barb.  217  ;  Ex  parte  Nelson,  i 
Cowen,  417;  Ex  parte  Lyneh,  2  Hill,  45  ;  People  v.  Starr,  55 
How.  Pr.  388  ;  People  v.  Supervisors  of  Chenango  Co.,  1 1  N.  Y. 
563  ;  People  v.  Booth,  49  Barb.  31  ;  People  v.  Wood,  35  Barb.  653, 
2  Abb.  90  ;  People  ex  rel.  Moult  on  v.  Mayor  of  New  York,  10 
Wend.  393;  People  V.  Thompson,  25  Barb.  73. 

The  court  will  not  award  a  mandamus  when  full  relief  can  be 
had  by  any  other  remedy.  People  v.  Lott,  42  Hun,  408  ;  People 
V.  Nezv  York  Police  Commissioners,  107  N.  Y.  235,  although  the 
remedy  will  not  be  denied  merely  because  the  relator  may  have 
a  remedy  by  action  for  damages.  People  v.  Taylor,  i  Abb.  N.  S. 
200,  30  How.  Pr.  78.  While  the  existence  of  an  adequate  remedy 
at  law  will  be  ground  for  refusing  a  writ,  the  fact  of  existence  of 
an  equitable  remedy  is  not  an  objection.  People  v.  Mayor  of 
Neiv  York,  10  Wend.  395. 

The  relator  must  have  the  right  to  the  performance  of  some 
particular  act  or  duty  at  the  hands  of  the  respondent,  and  the 
case  must  be  one  in  which  the  law  affords  no  adequate  remedy 
to  secure  the  enforcement  of  the  right  and  the  performance  of 
the  duty  which  it  is  sought  to  coerce.  People  v.  Supervisors  of 
Green,  12  Barb.  217.  And  this  subject  to  the  restriction  that  this 
must  be  a  right  to  have  the  act  performed  by  some  corporation, 
officer,  or  board,  or  by  an  inferior  court.  Dunklin  County  v. 
District  Co.  Court,  23  Mo.  449. 
10 


146  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


The  writ  is  never  granted  except  for  public  purposes  and  to 
command  the  execution  of  public  duties.  FisJi  v.  WeatJicrwax,  2 
Johns.  Cas.  215;  Bacon's  Abridgment,  title  Mandamus.  The 
general  principles  applicable  to  the  writ  are  that  it  will  not  issue 
when  it  would  be  unavailing.  People  v.  Supervisors  of  Westchester,. 
15  Barb.  607  ;  Colonial  Life  Ins.  Co.  v.  Supervisors  of  New  York, 
24  id.  166.  It  is  never  granted  in  anticipation  of  a  refusal  to 
act.  High  on  Extraordinary  Remedies,  14.  Mandamus  will 
sometimes  lie  against  a  municipal  corporation  when  there  is 
another  remedy.  People  v.  Green,  2  T.  &  C.  62.  But  it  seems 
not  when  the  remedy  at  law  is  adequate.  People  v.  Common 
Council,  8  Week.  Dig.  82.  The  practice  under  the  Code  of  Civil 
Procedure  was  unsettled,  being  derived  from  the  common  law, 
and  modified  from  time  to  time  to  meet  new  statutes.  The  pro- 
ceedings up  to  the  time  of  the  Code  of  Procedure  by  this  writ 
were  comparatively  rare,  and  by  it  no  provision  was  made  for 
rules  of  practice,  and  great  confusion  arose  after  its  enactment  as 
to  the  proper  method  of  procedure,  it  beingquestioned  for  a  long 
time  whether  it  was  an  action  or  special  proceeding  ;  and  it  was 
in  People  V.  Lezvis,  28  How.  Pr.  470,  held  to  be  an  action,  yet  the 
procedure  at  common  law  was  held  applicable.  It  is  now  a  special 
proceeding. 

The  codifiers,  in  framing  the  New  Code,  have  devoted  them- 
selves exclusively  to  regulating  the  mode  of  procedure,  and  have 
made  no  attempt  to  define  the  cases  in  which  the  writ  will  lie. 
The  power  to  issue  the  writ  is  confined  to  courts  of  general  com- 
mon-law jurisdiction,  and  these  courts  will  be  governed  in  ad- 
ministering relief  by  the  writ  by  the  same  conditions  and  limita- 
tions as  existed  at  common  law,  and  will  not  issue  the  writ  where 
another  adequate  remedy  is  provided  by  law.  Kimball  v.  Union 
Water  Co.,  44  Cal.  173.  The  writ  is  most  frequently  used  to 
compel  public  officers  to  perform  some  act  in  the  line  of  their 
duty  and  is  appropriate  to  that  function.  United  States  w.  Com- 
missioners, etc.,  High  on  Extraordinary  Remedies,  32.  There 
must,  however,  be  such  officers  in  being,  and  it  will  not  run 
against  officers  who  have  never  qualified,  or  who  are  functus 
officio,  or  where  their  term  has  expired.  State  v.  Beloit,  21  Wis. 
280;  State  V.  Waterman,  5  Nev.  323  ;  Mason  v.  Sdiool  District, 
20  Vt.  487.  But,  when  it  is  a  duty  which  would  be  incumbent 
on  their  successors,  the  fact  that  the  term  is  about  to  expire  is  no 


MANDAMUS.  I47 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

answer.  People  v.  Collins,  19  Wend.  56;  People  v.  Champion,  16 
Johns.  61.  The  writ  will  only  be  granted  where  there  is  a  discre- 
tion to  be  exercised  for  the  purpose  of  putting  the  officer,  court, 
or  board  in  motion,  but  will  not  control  his  or  its  action,  or  dictate 
the  decision  to  be  made  or  judgment  to  be  rendered.  People  v. 
Brennan,  39  Barb.  65 1  ;  Howlanei  v,  Eldredge,  43  N.  Y.  457  ;  People 
V.  Contracting  Board,  27  id.  378  ;  People  v.  Booth,  49  Barb.  3 1  ;  People 
V.  Common  Council,  78  N.  Y.  33  ;  People  v.  Canal  Appraisers,  73  id. 
443  ;  People  v.  Fairman,  91  id.  385.  In  People  ex  rel.  v.  Baker,  14 
Abb.  19,  many  of  the  points  above  noted  are  discussed  and  passed 
upon.  Whenever  a  party  has  a  legal  right  and  is  entitled  to  a 
remedy,  and  the  court,  official,  or  corporation,  whose  duty  it  is  to 
act,  refuses  to  do  so,  the  writ  lies.  People  ex  rel.  v.  Clerk  Marine 
Court,  3  Abb.  309,  Court  of  Appeals  ;  People  ex  rel.  v.  Hayt,  66 
N.  Y.  606;  Adriance  V.  Supervisors,  12  How.  224;  People  ex  rel. 
v.  Taylor,  i  Abb.  (N.  S.)  200 ;  People  ex  rel.  v.  St.  Patrick's 
Cathedral,  10  Week.  Dig.  124;  People  v.  Wendell,  71  N.  Y.  171  ; 
People  V.  Thompson,  25  Barb.  73  ;  People  v.  Green,  63  id.  390  ;  People 
v.  Martin,  62  id.  570;  People  v.  Inspectors,  44  How.  322  ;  People 
v.  Ha^vs,  12  Abb.  204;  People  v.  Hawkins,  46  N.  Y.  9. 

The  writ  is  granted  where  remedy  by  action  is  doubtful. 
People  v.  Havemeyer,  16  Abb.  (N.  S.)  219  ;  People  v.  Supervisors, 
II  N.  Y.  563  ;  People  v.  Green,  58  id.  295  ;  People  v.  Steele,  2  Barb. 
417  ;  People  v.  Canal  Board,  13  id.  440  ;  Clark  v.  Miller,  47  id.  38, 
54  N.  Y.  528.  The  granting  of  the  writ  has  been  in  certain  cases 
held  to  be  entirely  discretionary,  and  that  no  appeal  lies  to  Court 
of  Appeals  from  refusal  in  cases  where  it  depends  on  discretion. 
Van  Rensselaer  v.  Sheriff,  i  Cow.  501  ;  People  ex  rel.  v.  Super- 
visors, 15  Barb.  607;  People  ex  rel.  v.  Bowling,  55  id.  197;  People 
ex  rel.  v.  Common  Council,  52  How.  346;  People  ex  rel.  v.  Booth, 
49  Barb.  31  ;  People  ex  rel.  v.  Ferris,  y6  N.  Y.  326;  People  ex  rel. 
V.  Campbell,  72  id.  496 ;  Sage  v.  Railroad  Co.,  70  id.  220  ;  People  v. 
Doxvling,  37  How.  394 ;  People  v.  Aslen,  7  Week.  Dig.  411.  Where 
a  party  has  a  sufficient  remedy  at  law  against  a  public  officer,  the 
court  is  not  absolutely  bound  to  grant  a  writ  of  mandamus,  but 
it  may  in  its  discretion  refuse,  and  this  discretion  is  not  reviewable 
by  the  Court  of  Appeals.  People  ex  rel.  v.  TJwmpson,  99  N.  Y. 
641,  [o\\o\N\x\^  People  v.  Campbell,  72  id.  496.  But  while  it  is  not 
a  writ  of  right,  this  discretion  is  to  be  exercised  and  is  to  be 
regulated    and    controlled    by    sound   legal    principles.     Fish    v. 


148  MANDAMUS, 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


Weathcrwax,  2  Johns.  Cas.  215  ;  Fcopic  ex  rcl.  v.  Common  Council, 
9  Week.  Dig.  43,  Court  of  Appeals  ;  S.  C.  78  N.  Y.  56.  There 
must  be  a  clear  legal  right  and  no  other  legal  remedy.  People  v. 
Supervisors  of  Chenango,  i  Kern.  563  ;  People  v.  Supervisors  of 
Green,  12  Barb.  217  ;  People  v.  Canal  Board,  13  id.  444 ;  People  v. 
Croton  Board,  26  id.  240 ;  People  v.  Supervisors  of  Rielunond,  2 1 
How.  335  ;  People  v.  Corporation  of  Brooklyn,  i  Wend.  324;  People 
V,  Supervisors  of  Columbia,  10  id.  363  ;  People  v.  Mayor  of  New 
York,  id.  397  ;  People  v.  Supervisors  of  Chenango,  11  N.  Y.  563  ; 
People  V.  Easton,  13  Abb.  (N.  S.)  159  ;  People  v.  Fay,  3  Lans.  398  ; 
People  ex  rel.  Badgley  v.  Supervisors  of  Green,  i  Hun,  i  ;  People 
V.  Auditors  of  Shawangunk,  i  How.  (N.  S.)  224  ;  People  ex  rel.  v. 
Supervisors,  18  Abb.  8  ;  People  ex  rel.  v.  (^^^^j  7  Hun,  608  ;  People 
ex  rel.  v.  Board  of  Apportionment,  64  N.Y.  627;  People  ex  rel.  v. 
Campbell,  72  id.  496;  (T/^r/^  v.  Miller,  54  id.  528;  /'.t'^//<?  r;ir  rel. 
V.  Green,  ii  Hun,  56;  People  ex  rel.  w.  Hazv  kins,  46  N.Y.  9.  The 
writ  is  said  to  lie  to  corporations  and  municipal  officers,  although 
there  is  a  remedy  by  action.  Buck  v.  City  of  Lockport,  6  Lans. 
251  ;  People  ex  rel.  v.  Steele,  2  Barb.  397  ;  People  ex  rel.  v.  Myer, 
10  Wend.  393  ;  McCullough  v.  Meyer,  23  id.  458.  But  see  People 
V.  Board  of  Supervisors  of  Chenango,  ii  N.Y.  573.  It  will  not 
be  awarded  where  there  is  a  remedy  by  action.  Ex  parte  The 
Fireman  s  Ins.  Co.,  6  Hill,  243;  Shipley  v.  Mechanics  Bank,  10 
Johns.  484  ;  People  ex  rel.  v.  Coal  Co.,  10  How.  544 ;  In  the  Matter 
of  Boice,  2  Cow.  444;  People  v.  The  Mayor  of  New  York  City,  25 
Wend.  680;  People  v.  The  Supervisors  of  Chenango  Co.,  i  Kern. 
563  ;  People  v.  The  President  of  Brooklyn,  i  Wend.  318  ;  People  v. 
Tioga  Common  Pleas,  19  id.  73;  s.  c.  13  Abb.  374;  People  v. 
Fernando  Wood,  Mayor,  etc.,  35  Barb.  653;  People  v.  Stevens,  5 
Hill,  616;  People  v.  Dikeman,  7  How.  124;  People  v.  6^rrr//,  11 
Hun,  61  ;  People  v.  French,  24  id.  263.  Except  in  special  cases. 
People  V.  Supervisor,  70  N.  Y.  228.  As  to  how  far  this  is  true 
when  the  writ  is  directed  to  ministerial  officers  and  corporations 
sec  McCullough  v.  Mayor  of  Brooklyn,  23  Wend.  458;  People  v. 
Steele,  2  Barb.  398  ;  and  People  v.  Supervisors  of  Chenango,  i  Kern. 
573.  The  writ  will  not  issue  to  compel  an  act  requiring  discre- 
tion or  to  review  an  act  requiring  discretion.  People  v.  Common 
Council,  yZ  N.Y.  33;  People  v.  Supervisors  of  Westchester,  \2 
Barb.  446  ;  Ex  parte  Baily,  2  Cow.  479 ;  Ex  parte  Bassett,  id. 
458  ;  People  v.  N.  Y.  Common  Pleas,  19  Wend.  113;  People  \.  Con- 


MANDAMUS.  149 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

trading  Board,  27  N.  Y.  378;  People  v.  Booth,  49  Barb.  31  ;  People 
V.  Taylor,  i  Abb.  (N.  S.)  200 ;  HiitcJiinson  v.  Cojmnissioners,  25 
Wend.  692;  People  ex  rel.  v.  Leonard,  74  N.  Y.  443;  Beams  v. 
Gould,  yy  id.  95;  People  v.  Common  Council,  20  Alb.  L.  J.  269; 
People  V.  Common  Council,  9  Week.  Dig.  68.  It  will  not  be  issued 
where  there  is  doubt  as  to  the  right  of  the  claimant.  People  v. 
West  Troy,  25  Hun,  179.  It  will  not  lie  to  review  the  discretion 
of  a  railroad  company  in  failing  to  furnish  suitable  passenger 
and  freight  houses  at  a  station,  even  where  facts  appear  which 
show  the  duty  to  be  imperative.  People  m.  N.  Y.&L.E.R.R. 
Co.,  5  State  Rep.  551,  reversing  40  Hun,  571.  When  the  act,  the 
doing  of  which  is  sought  to  be  compelled,  is  final,  the  right  to  have 
the  act  performed  may  be  inquired  into.  People  ex  rel.  v.  Canal 
Appraisers,  13  Hun,  64,  73  N.  Y.  443.  It  is  not  discretionary  for 
supervisors  to  refuse  to  levy  any  sum  where  the  liability  is  plain, 
and  no  dispute  as  to  amount.  People  ex  rel.  v.  Supervisors  of 
Delaware,  9  Abb.  (N.  S.)  408,  45  N.  Y.  196  ;  same  principle, 
People  V.  Green,  66  Barb.  630.  It  has  been  held  the  writ  will  not 
always  be  granted,  though  there  is  no  other  remedy.  Ex  parte 
Ostrander,  i  Denio,  679;  People  v.  Doivling,  55  Barb.  197,  But 
it  may  issue,  though  there  is  a  remedy  by  certiorari.  People  ex 
rel.  V.  Taylor,  30  Hun,  78.  It  will  not  be  granted  to  enforce 
action  under  a  statute  so  badly  drawn  it  cannot  be  enforced,  or 
where  it  is  of  doubtful  constitutionality.  People  v.  Robinson,  14 
Hun,  226,  y6  N.  Y.  422  ;  People  v.  Canal  Board,  4  Lans.  272. 
Where  there  is  a  remedy  ^y  appeal,  writ  will  not  lie.  People  v. 
Coffin,  7  Hun,  608.  Or  by  action.  People  v.  Inspectors,  44  How. 
.322  ;  People  v.  Lott,  41  N.  Y.  408.  If  too  much  is  asked,  the 
rule  has  been  laid  down  that  the  writ  will  be  denied.  People  v. 
Cady,  2  Hun,  224;  People  v.  Port  Jervis,  8  Week.  Dig.  243  ;  Peo- 
ple V.  Green,  64  Barb.  162.  It  was  held  under  the  old  Code  that 
the  writ  would  be  refused  when  there  had  been  great  delay  in 
the  application.  People  v.  Tremain,  29  Barb.  96  ;  People  v.  Taylor,  30 
How.  78;  People  v.  Common  Council,  52  id.  346.  S>&e  People  v. 
Cooper,  24  Hun,  337.  But  some  injury  from  the  delay  should  be 
shown  to  prevent  the  issue  of  the  writ.  People  v.  Common  Coun- 
cil, 9  Week.  Dig.  43  ;  S.  C.  78  N.  Y.  56.  But  under  the  present 
Code,  it  has  been  held  at  Special  Term  that  the  time  under  which 
the  writ  may  be  asked  is  the  same  as  limitation  of  an  action. 
People  V.  Beach,  3  Civ.  Pro.  180,   12  Abb.  (N.  S.)  156.     The  writ 


I50  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

will  be  refused  where  great  delay  has  resnlted  in  payment  of 
moneys  being  made  to  another  claimant.  People  v.  O'Keefe,  17 
Week.  Dig.  536.  Si.x  years  is  the  limitation  of  time  within  which 
the  writ  must  be  asked.  People  v.  French,  31  Hun,  617;  People 
V.  Police  Comuirs,  N.  Y.  Daily  Reg.,  Aug.  2,  1883.  But  the 
proper  officer  may  be  compelled  to  accept  payment  of  taxes  by 
mandamus,  and  the  Statute  of  Limitation  is  no  bar.  People  v. 
Cady,  51  N.  Y.  Super.  316.  Mandamus  should  not  be  granted 
where  the  defendant  has  been  legally  enjoined  from  doing  what 
the  relator  seeks  to  have  done.  People  v.  West  Troy,  2$  Hun, 
179;  People  V.  Supervisors  of  Ulster,  30  id.  146.  Every  citizen 
has  the  right  to  compel  public  officers  to  execute  the  law^s  of  the 
State,  and  citizens  can  compel  a  board  of  health  to  organize. 
People  V.  Daly,  37  Hun,  461. 

It  will  not  lie  to  compel  cemetery  association  to  allow  burial. 
People  V.  Trustees  of  Cathedral,  21  Hun,  184,  reversing  Copper's 
Case,  7  Abb.  N.  C.  121.  Or  to  compel  an  officer  to  carry  out  the 
will  of  a  corporation.  People  v.  Brennan,  39  Barb.  522.  It  was 
held  in  Ex  parte  Fireman  s  Ins.  Co.,  6  Hill,  243,  that  mandamus 
would  not  issue  to  compel  transfer  of  stock.  Shipley  v.  Mechan- 
ics Bank,  10  Johns.  484;  People  v.  Parker  Vein  Coal  Co.,  10  How. 
544.  But  see  People  v.  Mead,  24  N.  Y.  120.  Or  to  transfer  cer- 
tificate of  membership  in  exchange.  People  v.  Miller,  39  Hun, 
557.  In  People  v.  Commissioners  of  Excise,  J  Abb.  34,  it  was  held 
the  writ  would  not  lie  to  compel  excise  board  to  issue  license. 
But  see  chap.  496,  Laws  1886,  and  People  v.  Becker,  3  State 
Rep.  202.  It  was  held  in  People  v.  Babcock,  16  Hun,  313,  that  the 
writ  would  not  be  granted  to  compel  an  express  company  to 
carry  goods.  But  see  People  v.  N.  V.  C.  R.  R.,  28  Hun,  543, 
where  it  was  held  that,  in  an  action  brought  by  attorney-general 
in  name  of  the  people,  mandamus  will  lie  to  compel  railroad 
corporation  to  exercise  its  duty  as  a  carrier  of  freight  and  passen- 
gers. Persons  who  have  been  inmates  of  a  charitable  institution 
but  have  no  other  rights  cannot  be  reinstated  as  inmates  by 
mandamus.  People  v.  Trustees  of  Sailors'  Snug  Harbor,  N.  Y. 
Daily  Register,  May  7,  1883.  The  writ  will  not  issue  to  com- 
pel a  corporation  to  remove  a  telegraph  pole  erected  by  a  corpo- 
ration, the  remedy  is  an  action  for  damages.  People  ex  rel. 
McManus  v.  Thompson,  32  Hun,  93.  The  writ  will  not  run  against 
a  foreign  corporation  to  compel  it  to  exhibit  its  books  to  a  stock 


MANDAMUS.  15I 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

holder.  People  v.  N.  P.  R.  R.  Co.,  50  N.  Y.  Super.  456.  It  has 
been  held  it  will  not  lie  to  compel  a  religious  corporation  to 
restore  a  relator  to  membership.  People  v.  German  Church,  53 
N.  Y.  103. 

Whether  the  relator  has  a  clear  legal  right  and  is  entitled  to 
have  the  thing  done  may  be  inquired  into  both  by  the  party 
moved  against  and  by  the  tribunal  applied  to.  Pco.  ex  rel.  Third 
Ave.  R.  R.  Co.  v.  Newton,  112  N.  Y.  399,  citing  Pco.  ex  rel.  Freer 
V.  Canal  Appraisers,  73  N.  Y.  443.  Mandamus  will  not  lie 
unless  there  be  a  clear  legal  right  to  the  relief  and  no  other 
adequate  legal  action  to  obtain  it.  Peo.  ex  rel.  McMackin  v. 
Board  of  Police,  107  N.  Y.  235,  affirming  46  Hun,  296.  The 
right  to  a  peremptory  writ  depends  upon  a  clear  legal  right 
to  the  relief  sought  by  it,  and  when  it  rests  in  any  substantial 
doubt  or  the  facts  upon  which  it  depends  are  in  any  essential 
respect  controverted  by  affidavit,  such  writ  will  not  be  allowed 
to  issue.  Peo.  ex  rel.  N.  Y.  Exchange  Bank  v.  Stupp,  49  Hun, 
544,  2  Supp.  537,   18  St.  Rep.  500. 

Mandamus  will  not  lie  to  compel  a  board  of  supervisors  to 
allow  a  claim  by  a  district  attorney  for  expenses  incurred  in  pro- 
ceedings for  the  extradition  of  fugitives  from  justice.  People  ex 
rel.  Gar  denier  v.  Board  of  Supervisors,  2  Supp.  351,  reversed,  56 
Hun,  17,  which  was  affirmed,  134  N.  Y.  i.  One  is  not  entitled  to 
mandamus  against  the  public  officers  of  a  city  to  remove  a  tele- 
graph pole,  even  if  the  ordinance  authorizing  the  erection  were 
void  because  no  compensation  was  made  to  the  relator  for  the 
taking  of  his  private  property,  the  remedy  being  by  action.  Peo. 
ex  rel.  McManus  v.  Thompson,  32  Hun,  93. 

Mandamus  will  not  lie  to  compel  the  payment  of  the  salary  of 
a  school  teacher,  the  claimant  having  an  action  at  law.  Peo.  ex 
rel.  Stcinson  v.  Board  of  Education  of  N.  V.,  60  Hun,  486,  39  St. 
Rep.  570,  15  Supp.  308.  The  discretion  of  the  court  to  grant 
or  refuse  a  writ  of  mandamus  is  not  absolute,  but  is  governed  by 
legal  rules,  and  its  exercise  is  subject  to  review  upon  appeal.  Peo. 
ex  rel.  Millard  v.  Chapin,  104  N.  Y.  96,  reversing  40  Hun,  386. 
"  There  is  no  dispute  as  to  the  rule  of  law  that  a  mandamus 
against  a  public  officer  or  municipality  is  a  proper  remedy  to 
compel  the  performance  of  a  ministerial  duty  plainly  prescribed, 
and  may  be  invoked  in  behalf  of  any  party  interested  in  its  per- 
formance, on  the  failure  of  the  officer  or  public  body  to  do  the 


152  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

act  or  thing  required.  But  where  the  officer  or  body  is  clothed 
with  discretion,  and  may  do  or  omit  to  do  the  act  or  thing  ac- 
cording to  the  judgment  of  the  person  or  body  authorized  to 
act,  then  a  mandamus  can  only  issue  to  compel  a  decision  incase 
of  a  refusal  to  decide,  and  when  a  decision  is  made  the  remedy 
by  mandamus  ends.  The  court  cannot  on  mandamus  review 
the  decision  made,  or  compel  a  decision  the  other  way  because 
the  court  may  disagree  as  to  the  justice  or  propriety  of  the  con- 
clusion reached.  The  broad  distinction  is  between  duties  man- 
datory and  peremptory  and  those  involving  discretion  and 
judgment.  In  the  one  case  the  public  agent  cannot  refuse  to 
act  or  to  do  the  thing  required,  and  in  the  other  the  court  is 
not  permitted  to  substitute  its  judgment  for  that  of  the  person 
or  body  clothed  by  the  law  with  the  power  to  decide." 
Andrews,  Ch.  J.  Peo.  ex  rel.  Wooster  v.  Mahar,  141  N.  Y.  330, 
57  St.  Rep.  425.  A  preference  is  given  where  the  writ  of  man- 
damus has  been  issued  from  the  appellate  division  to  Special 
Termor  a  judge  thereof  in  the  discretion  of  the  court.  Section 
792  of  the  Code  of  Civil  Procedure. 

Mandamus  to  boards  of  election  officers  provided  for  by 
§  133  of  the  Election  Law  is  referred  to  and  authorities  cited 
under  it  under  that  head.  Mandamus  is  also  provided  for 
by  §  31  of  the  Public  Health  Law,  which  provides  that  the  per- 
formance of  any  duty  or  the  doing  of  any  act  enjoined,  pre- 
scribed or  required  by  Art.  2  of  the  Health  Law  may  be  enforced 
by  mandamus  at  the  instance  of  the  State  board  of  health,  or 
the  president  or  secretary  of  the  local  board  or  the  president  and 
secretary,  and  any  citizen  of  full  age  and  a  resident  of  the  mu- 
nicipality where  the  deed  should  be  performed  or  the  act  done. 

It  is  provided  by  §  67  of  the  Railroad  Law  that  the  Supreme 
Court  at  Special  Term  shall  have  power  in  case  of  a  decision  by 
the  railroad  commissioners  to  compel  a  compliance  therewith  by 
mandamus,  subject  to  appeal  to  the  appellate  division  and  to 
the  Court  of  Appeals  in  the  same  manner  and  with  like  effect  as 
provided  in  cases  of  appeal  in  any  order  of  the  Supreme  Court. 

The  act  relative  to  drainage,  as  amended  by  Laws  of  1897, 
chap.  249,  provides  that  the  court  in  which  the  proceeding  is 
opened  shall  have  jurisdiction  by  mandamus  upon  the  petition 
of  any  party  grieved  to  enforce  prompt  compliance  with  §  II 
of  tliat  law  by  any  official  charged  therewith. 


MANDAMUS.  1 53 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

Sub.  3.  When  Granted  Against  State  Officers. 
The  writ  will  lie  to  comptroller  to  perform  a  statutory  duty. 
People  V.  Allen,  42  N.  Y.  404.      But  where   the   comptroller  has 
refused  an  application  to  cancel  the  sale  of  land   for  taxes  upon 
the  ground  that  the  sale  was  regular,  he  cannot  be  compelled  by 
mandamus    to    reach    a    different    conclusion.     People  ex  rel.  v. 
Chapin,  3  St.  Rep.    38,    103   N.  Y.  635,  affirming   39   Hun,   230. 
The  remedy,  however,  against  the   comptroller   by   a   party   ag- 
grieved as  to  cancellation  of  taxes  is   by  certiorari  and    not  by 
mandamus.     People  v.  Chapin,  39    Hun,   230.     The   writ   lies  to 
the  Secretary  of  State.     People  v.  Nelson,  3  Lans.  394,  46   N.   Y. 
477;  People  V.  Beach,  57  How.  337.     Also  to  the  treasurer.     People 
V.  Bristol,  I  Lans.  45.     And  to  the  attorney-general.     People  v. 
■  Tremain,  17  How.  10.     See  id.  142.     Also  to  the  auditor  to  issue 
a  draft.     People  v.  Thayer,  63  N.  Y.  348  ;  People  v.  Schuyyer,  79 
id.  181  ;  People  v.    Thayer,  4   Hun,   798.     To  compel  canal  ap- 
praisers to  appraise.     Ex  parte  Jennings,  (>  Qo^N.  518.     To  com- 
missioners to  award  contract.     People  v.   Contracting  Board,   46 
Barb.  254.     To  superintendent  of  insurance  department.     Matter 
of  N.  A.  Ins.  Co.,  9  Week.  Dig.  478,  Court   of  Appeals.     It  runs 
against  auditor  of  canal  department.     People  v.  Bell,   38   N.  Y. 
386.     To    compel    canal  appraisers   to   make  return   on  appeal. 
People  v.  Canal  Appraisers,  73  N.  Y.  443.     It  does  not  lie  to  com- 
pel award   of  contract   when   it   has   been,  although  wrongfully^ 
awarded  to  another.     People  v.  Contracting  Board,  27  N.  Y.  378. 
Or  to  compel  award  to  lowest  bidder  when  his  bid   is  informal. 
Weed  v.  Beach,  56  How.  470.     The  writ  was  set  aside  as  improp- 
erly   granted    against  superintendent    of    insurance.     People    v. 
Chapman,  64  N.  Y.  557.     And  refused  to  militia  ofificer  against 
Governor.     People  v.  Schrugharn,  2^   Barb.  216.     Writ  does  not 
lie  to  compel  attorney-general  to   bring  suit.     People  v.  Fairchild, 
67  N.  Y.  334.     A  decision  and   recommendation  of  the  board  of 
railroad   commissioners,  that  a  railroad  company  should  furnish 
proper  freight  accommodations  at  an  estabhshed  station,  is  bind- 
ing   upon   the    company,    subject  to  the  determination  by  the 
Supreme  Court  of  the  question  whether  the  action  of  the  board 
was  just  and  reasonable,  and  such  decision  and  recommendation 
may  be   enforced   by   mandamus.      Peo.  v.   Prest.,  etc.,  D.  &  H. 
C.   Co.,  32  App.  Div.   120,  52  Supp.  850,  86  St.  R.  850.     Man- 
damus  will  not   lie   to   the  Governor  to  compel  him  to  perform 


154  MANDAMUS. 


Art.    I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 


either  executive  or  ministerial  duties.  Pco.  ex  rel.  Broderick 
V.  Morton,  156  N.  Y.  136,  50  N.  E.  Rep.  791.  Mandamus  may 
be  crranted  against  the  Lieutenant-Governor  and  Speaker  of  the 
Assembly  during  a  recess  of  the  legislature,  unless  they  have 
succeeded  to  the  executive  power.  Peo.  ex  rel.  Broderick  v, 
Morton,  156  N.  Y.  136,  50  N.  E.  Rep.  791.  Mandamus  will  not 
lie  to  require  the  superintendent  of  the  insurance  department 
to  correct  the  report  of  examiners  appointed  by  him  to  ex- 
amine into  the  condition  of  an  insurance  company,  as  no  such 
duty  is  imposed  upon  him  by  law.  Peo.  ex  rel.  Long  Island 
Mut.  F.  I.  Co.  V.  Payn,  26  App.  Div.  584,  50  Supp.  334,  84  St.  R. 
334.  Mandamus  will  lie  to  the  State  comptroller  to  compel  the 
full  payment  of  a  judge's  salary.  People  ex  rel.  Bockes  v.  Wevi- 
ple,  115  N.  Y.  302.  It  will  lie  to  the  comptroller  to  compel  him 
to  issue  warrants  to  a  university  for  the  payment  of  money 
appropriated  by  Congress  for  the  maintenance  of  educational  in- 
stitutions. People  ex  rel.  Cornell  University  v.  Davenport,  117 
N.  Y.  549.  It  will  lie  to  the  Civil  Service  Commission  to  compel 
them  to  place  the  name  of  the  relator  on  the  list  of  eligibles 
under  the  Civil  Service  Act,  where  his  name  has  been  illegally 
stricken  therefrom.  People  ex  rel.  Van  Petten  v.  Cobb,  13  App. 
Div.  56. 

It  will  not  He  to  the  attorney-general  to  compel  him  to  attach 
his  certificate  to  an  application  for  incorporation  pursuant  to 
§  10,  chapter  725,  Laws  of  1893.  People  ex  rel.  Woodward  v. 
Rosendale,  76  Hun,  103,  affirmed,  142  N.  Y.  126,  reversing  5  Misc. 
379.  But  the  attorney-general  may  be  required  to  certify  to  a 
judgment  which  has  been  certified  to  by  the  clerk  of  the  court, 
as  required  by  §  3241,  Code  Civil  Procedure.  People  ex  rel. 
Fargo  V.  Rosendale,  76  Hun,  1 12,  57  St.  Rep.  377,  27  Supp.  825, 
affirmed,  142  N.  Y.  670.  It  will  lie  to  the  Secretary  of  State  to 
compel  him  to  furnish  a  contractor  for  public  printing  with 
necessary  material  from  which  the  printing  is  to  be  done, 
although  he  had  previously  made  arrangements  for  such  print- 
ing with  another  party.  People  ex  rel.  Weed-Parsons  Co.  v. 
Palmer,  14  Misc.  41,  68  St.  Rep.  166,  35  Supp.  222.  But  the  writ 
will  not  lie  to  the  superintendent  of  public  works  to  compel 
him  to  award  a  contract  to  an  unsuccessful  bidder,  unless  the 
successful  bidder  be  made  a  party  to  the  proceedings,  or  if  the 
award  has   been  made,  to  compel   the   superintendent   to    make 


MANDAMUS.  1 55 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

an  award  to  another.  Matter  of  Hilton  Bridge  Construction  Co., 
13  App.  Div.  24.  Nor  will  it  lie  to  the  Commissioners  of  the 
Land  Office  to  compel  them  to  direct  the  payment  of  original 
purchase  moneys,  on  the  ground  that  the  title  of  the  people 
has  failed,  such  a  determination  involving  a  judicial  function. 
People  ex  rel.  Harris  v.  Commissioners,  149  N.  Y.  26. 

Mandamus  will  not  lie  to  the  superintendent  of  public  works 
to  award  to  the  petitioner  a  public  contract  where  the  statute 
providing  therefor  states  that  the  contract  shall  "  be  let  to  the 
lowest  bidder,  .  .  .  except  such  portions  thereof  as  in  the  judg 
ment  of  the  Superintendent  of  Public  Works  and  State  Engineer 
can  be  so  done  to  the  best  interest  of  the  State."  Where  the  con- 
tention of  the  relator  in  such  a  case  is  that  the  bid  of  the  suc- 
cessful bidder  was  too  indefinite,  he  is  merely  entitled  to  have 
such  bid  set  aside,  and  then  to  require  such  officers  either  to  ac- 
cept his  bid  or  to  advertise  anew.  Matter  of  Hilton  Bridge  Con- 
struct  ion  Co.,  13  App.  Div.  24 

Sub.  4.  When  Granted  Against  County  Officers. 

Mandamus  will  issue  to  county  treasurer  to  pay  a  valid  audit 
by  supervisors.  People  v.  Stout,  23  Barb.  338  ;  People v .  Edmonds, 
19  id.  468;  People  v.  Edmunds,  15  id.  529;  People  v.  Fitzgerald, 
54  How.  I  ;  People  v.  Earle,  16  Abb.  (N.  S.)  64.  See  Healey  v. 
Dudley,  5  Lans.  115  ;  People  v.  Starr,  55  How.  388.  Or  to  issue 
warrant  for  collection  of  tax.  People  v.  Halsey,  37  N.  Y.  344. 
But  not  where  the  supervisors  had  no  jurisdiction  to  audit. 
People  V.  Lawrence,  6  Hill,  244.  Or  where  a  portion  of  claim  is 
fraudulent.  People  v.  Wendell.^  71  N.  Y.  171.  Nor  a  claim  for 
which  creditor  has  already  accepted  obligation  of  third  party  as 
payment.  People  v.  Cromwell,  102  N.  Y.  477.  It  will  issue  to 
compel  county  clerk  to  record  a  deed.  Ex  parte  Goodell,  14 
Johns.  325.  To  compel  register  to  file  a  satisfaction-piece. 
People  V.  Miner,  37  Barb.  466;  People  v.  Sigel,  46  How.  151.  The 
obligation  imposed  upon  a  register  of  deeds  to  permit  the  books, 
maps,  and  records  of  his  office  to  be  examined,  is  absolute  in  its 
character  and  may  be  enforced  by  mandamus.  Citing  People  v. 
Supervisors,  64  N.  Y.  600;  People  v.  Wendell,  71  id.  171  ;  Fiedler 
V.  Mead,  24  id.  1 14.  The  register  has,  however,  power  to  exercise 
his  discretion  as  to  the  good  order  of  the  office  and  preservation 
of  the  records.     To  that  extent  his  powers   and   duties   are   not 


156  MANDAMUS. 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

subject  to  be  interfered  with  or  controlled  by  mandamus.  People 
ex  rel.  Title  Guaranty  Co.  v.  Rcilly,  38  Hun,  429,  citing  People 
ex  rel.  German  American,  etc.,  Co.  v.  Richards,  99  N.  Y.  620.  It 
is  said  a  surrogate  may  be  compelled  to  award  letters  to  party 
entitled.  Case  of  Petullo,  i  Tuck.  99.  To  compel  sheriff  to  exe- 
cute a  deed.  Van  Rensselaer  v.  Sheriff  of  Albany,  i  Cow.  501  ; 
People  V.  Fleming,  2  N.  Y,  484  ;  People  v.  Beebe,  i  Barb.  379.  It 
will  run  against  the  commissioner  of  jurors  in  New  York  city  to 
compel  him  to  strike  the  name  of  a  person  not  liable  for  jury 
duty  from  the  list.  People  v.  Taylor,  df^  Barb.  129.  To  clerk  of 
Marine  Court,  to  compel  him  to  issue  execution  on  a  judgment. 
People  V.  Gale,  22  Barb.  502  ;  S.  C.  3  Abb.  Ct.  App.  491.  It  will 
not  be  granted  to  interfere  with  discretion  of  excise  commissioners. 
Kelly  V.  Excise  Commissioners,  54  How.  327.  Mandamus  will  issue 
in  a  proper  case  to  compel  a  register  to  accept  from  owners 
arrears  for  taxes,  even  though  an  invalid  sale  has  been  made. 
Clemcnti  V.  Jackson,  92  N.  Y.  591. 

The  writ  will  not  issue  to  interfere  with  the  discretion  of  super- 
visors where  they  have  a  discretion  to  exercise,  but  if  they  re- 
fuse to  audit,  for  any  sum,  a  legal  claim,  on  the  ground  it  is  illegal, 
mandamus  will  issue.  People  v.  Supervisors,  51  N.  Y.  401  ;  Hall 
V.  Supervisors,  19  Johns,  259.  It  will  lie  to  revoke  an  audit  in 
excess  of  what  is  allowed  by  law.  People  v.  Supervisors,  73  N.  Y. 
173.  It  will  He  to  compel  board  to  audit  claims  of  county 
of^cers.  People  v.  Supervisors,  32  N.  Y.  473  ;  People  v.  Super- 
visors, 45  id.  196;  Bright  V.  Supervisors,  18  Johns.  242.  Also 
to  compel  action  as  to  highway  damages.  People  v.  Supervisors^ 
20  N.  Y.  252;  People  V.  Supervisors,  4  Barb.  64.  Also  to  issue 
warrant  for  military  tax.  People  v.  Supervisors,  8  N.  Y.  317. 
Also  to  compel  board  to  obey  order  of  county  court,  as  to  cor- 
rection of  amount.  People  v.  Supervisors  of  Ulster,  65  N.  Y.  300. 
To  compel  repayment  of  taxes  on  property  assessed  in  two 
towns.  People  v.  Supervisors,  85  N.  Y.  612.  To  compel  super- 
visors to  strike  out  illegal  levy.  People  v.  Supervisors,  17  Week. 
Dig-  139.  And  to  allow  claim  for  repayment  of  taxes.  People  v. 
Supervisors,  51  N.  Y.  401.  To  compel  audit  of  an  account  where 
there  is  no  discretion  as  to  amount.  Boyce  v.  Supervisors,  20 
Barb.  294.  The  board  may  be  compelled  to  reassemble  and 
perform  duties  neglected  at  annual  meeting.  People  v.  Super- 
visors, 8  N.  Y.  317.     The  board  may  be  compelled  to  allow  ac- 


MANDAMUS.  157 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


counts  of  overseer  of  the  poor.  People  v.  Supervisors,  2  Cow.  530. 
To  restore  to  the  rolls  property  stricken  off  improperly.  People 
V.  Supervisors,  4  Hill,  20 ;  S.  C.  7  id.  504.  To  re-audit  claim. 
People  V.  Supervisors,  12  Barb.  217.  See  Osterhout  v.  Rigney,  98 
N.  Y.  222.  To  cause  taxes  illegally  assessed  to  be  repaid. 
People  V.  Supervisors,  36  How.  i  ;  People  v.  Supervisors,  51  N.  Y. 
401.  Mandamus  will  lie  to  compel  supervisors  to  designate  papers 
to  publish  session  laws.     People  v.  Supervisors  of  Greene,  13  Abb. 

N.  C.  421. 

The  writ  will  not  issue  to  compel  a  board  of  supervisors  to  dis- 
allow a  bill  already  audited  when  certificate  has  been  issued  there- 
for and  passed  to  third  party  and  bill  is  for  services  actually  ren- 
dered. The  remedy  is  by  certiorari  in  case  audit  was  illegal. 
People  V.  Supervisors  of  Greene,  14  Abb.  N.  C.  29.  Before  the  writ 
will  lie  to  the  board  to  assess  against  a  town  a  judgment  against  a 
commissioner  of  highways,  it  must  appear  that  it  is  a  valid  claim 
against  the  town.  People  v.  Auditors  of  Esopus,  74  N.  Y.  311; 
People  V.  Supcj'visors  of  Ulster,  93  id.  397.  Where  a  resolution 
was  illegally  declared  lost  and  the  board  adjourned,  it  was  held 
that  mandamus  directing  the  board  to  reassemble  was  suf^ciently 
served  on  chairman  and  clerk.  People  v.  Ncilson,  5  T.  &  C.  367. 
An  adjournment  of  a  board  of  supervisors  without  making  an 
audit  is  a  sufficient  refusal  to  justify  mandamus.  Peoplev.  Super- 
visors of  RicJimond,  20  N.  Y.  253.  Mandamus  will  not  lie  to 
compel  supervisors  to  audit  and  allow  the  expense  of  publishing 
the  terms  of  court,  although  the  publishing  was  ordered  by  a 
judge  of  the  court.  People  v.  Supervisors  of  Greene,  15  Abb. 
N.  C.  447  ;  Peoplev.  Supervisors,  39  Hun,  299.  It  is  no  valid 
reason  for  refusing  writ  against  county  canvassers  that  the  as- 
sembly is  judge  as  to  the  right  of  its  own  members  to  a  seat.  People 
ex  rel.  DcucJiler  v.  Canvassers  of  Wayne  Co.,  12  Abb.  N.  C.  78; 
S.  C.  64  How.  334.  The  writ  will  lie  to  a  board  of  supervisors  to 
compel  it  to  audit  an  account  where  it  refuses  to  do  so,  on  the 
ground  that  it  has  no  power.  People  ex  rel.  Anibal  v.  Supervisors 
of  Fulton,  53  Hun,  254,  6  Supp.  591.  The  writ  will  not  lie  to  a 
board  of  supervisors  to  audit  an  account  as  a  county  charge, 
where  it  was  shown  to  be  a  town  and  not  a  county  charge.  Peo- 
ple  ex  rel.  McGrath  v.  Siipervisors  of  Westchester,  119  N.  Y.  126. 

Although  a  board  of  supervisors  acts  judicially  in  auditing 
claims,  yet  where  no  question  of  fact   exists,  and  the  amount  of 


158  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


services  rendered   is  undisputed  and  the  rate   of    compensation 
established  by  law  or  by  undisputed  contract,  the   board  cannot 
reduce  the  amount  of  such   claim  upon   the    ground   that  it   is  a 
quasi-judicial  tribunal,    and  therefore    mandamus   will   issue    to 
compel  the  performance  by  the  board  of  its  duty    in  respect   to 
the  payment  of  such  claim.     People  ex  rcl.  Morrison  v.  Supervisors 
of  Hamilton,  56   Hun,  459,  31   St.    Rep.  473,  10   Supp.   88,  af- 
firmed, 127  N.  Y.  654.     A  peremptory  writ  will  not  be  issued  to 
a  board  of  supervisors   to   enforce   a  claim   against   the  county 
where  the  question   of  the  liability  of  the   county  therefor  has 
not  been  determined.    People  ex  rel.  Nichols  v.  Supervisors  of 
Queens  Co.,  60  Hun,  387,  39  St.  Rep.  863,  15  Supp.  461.     Where 
a  board  of  supervisors  has  considered  the  whole   of  an   account 
upon   its   merits,  and  has   in   good  faith  exercised  its  judgment 
and  rendered  a  decision   as  to   what   should  be  allowed,   man- 
damus cannot  thereafter  issue  to  compel  it   again   to  audit  the 
account  and  allow  the  claimant  a  greater  sum.     People   ex   rel. 
GMara  v.  Supervisors  of  Cayuga,  40  St.  Rep.  238,  16  Supp.  254, 
afifirmed,  43   St.  Rep.  'j'j.     Mandamus  will   not  lie  to  a  board  of 
supervisors   to    compel   them  to   act  under  a  law  which  is  uncon- 
stitutional.    People  ex  rel.  Pond  v.  Supervisors  of  Monroe  County, 
47  St.  Rep.  456,  19  Supp.  978,  reversed  on  other  grounds,  47  St. 
Rep.  702. 

As  to  mandamus  to  board  of  supervisors  under  the  "  Reform 
Ballot  Laws"  Laws  1890,  chapter  262,  as  amended  by  Laws  1891, 
chapter  296,  see  People  ex  rel.  Hasbrouek  v.  Supervisors,  135  N. 
Y.  522,  48  St.  Rep.  533.  Mandamus  lies  to  a  board  of  super- 
visors to  compel  it  to  provide  for  the  payment  of  a  judgment 
of  the  county  court  of  sessions  for  costs  on  appeal  in  a  bastardy 
proceeding  rendered  against  a  town  liable  for  the  support  of  its 
own  poor.  People  ex  rel.  Crouse  v.  Supervisors,  70  Hun,  560,  53 
St.  Rep.  796,  24  Supp.  397.  Mandamus  will  not  lie  to  a  board  of 
supervisors  requiring  it  to  recognize  the  petitioner's  right  to  a 
public  office  where  there  is  a  serious  question  in  regard  thereto, 
and  another  person  is  exercising  the  functions  of  the  office. 
The  remedy  in  such  case  is  by  quo  warranto.  People  ex  rcl.  Rumph 
V.  Supervisors,  89  Hun,  38,  69  St.  Rep.  386,  34  Supp.  11 28. 

Mandamus  will  not  lie  to  supervisors  to  compel  them  to  con- 
vene and  audit  a  claim  where  the  claim  is  not  vah'd  as  against  the 
town,  though   it   may  be  valid  against   an   officer   of  the   town. 


MANDAMUS.  159 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 


People  ex  rel.  Bevins  v.  Supervisors,  82  Hun,  298,  63  St.  Rep.  577, 
31  Supp.  248.  Mandamus  will  not  lie  against  a  supervisor  of  a 
city  to  compel  the  issuance  by  a  municipal  corporation  of  bonds 
to  pay  for  a  public  improvement,  if  it  be  apparent  that  a  serious 
question  will  arise  as  to  their  validity.  People  ex  rel.  Dady  v. 
Supervisors,  89  Hun,  241,  69  St.  Rep.  448,  35  Supp.  91.  See 
same  case  upon  appeal,  6  App.  Div.  225,  reversed,  154  N.  Y.  381. 
Mandamus  will  lie  to  compel  supervisors  to  hear  and  determine 
whether  services  were  rendered  to  the  county  by  a  justice  of  the 
peace,  and  if  they  were  rendered,  to  audit  the  claim.  If  the 
board  refused  to  audit,  on  the  ground  that  the  services  were  not 
rendered,  the  writ  will  not  lie,  but  if  they  refused  to  audit  merely 
on  a  question  of  law,  the  writ  will  lie.  Matter  of  Ramsdale  v. 
Supervisors,  8  App.  Div.  550,  40  Supp.  840,  reversing  16  Misc. 
213.  38  Supp.  890.  As  the  duty  of  a  board  of  supervisors  in 
relation  to  the  designation  of  newspapers  to  publish  laws  is  not 
absolutely  ministerial  and  clerical,  but  involves  to  some  extent 
judgment  and  discretion,  mandamus  will  not  lie  to  compel  it  to 
act  in  a  particular  manner  in  relation  thereto.  Matter  of  Browriy 
19  Misc.  693. 

Mandamus  will  lie  to  the  treasurer  of  a  county  commanding 
him  to  receive  forthwith  money  tendered  by  relator  as  assignee 
of  a  mortgage  upon  property  sold  for  taxes,  and  to  deliver  a 
receipt  for  such  payment,  certifying  that  the  same  was  in  full 
redemption  of  the  premises.  People  ex  rel.  Maloney  v.  EdivardSy 
56  Hun,  377.  Mandamus  will  lie  to  a  county  treasurer  to 
compel  him  to  invest  moneys  received  as  taxes  as  required 
by  law  (proceedings  under  §  4,  chapter  907,  Laws  1869,  as 
amended).  Spaulding  v.  Arnold,  125  X.  Y.  194,  34  St.  Rep.  980. 
On  a  proceeding  for  mandamus  against  the  supervisor  of  a 
town  to  compel  the  issuing  of  bonds  in  payment  for  work,  where 
payment  has  been  refused  because  the  bonds  had  not  been 
issued,  the  town  treasurer  and  clerk,  although  required  by  law 
to  sign  the  bonds,  are  not  necessary  parties.  People  ex  rel.  Dady 
V.  Supervisors,  154  N.  Y.  381,  48  N.  E.  Rep.  813.  Where  a  bill 
has  been  withdrawn  and  no  subsequent  demand  for  its  audit 
has  been  made,  the  claimant  is  not  entitled  to  a  mandamus 
to  compel  the  board  of  supervisors  to  convene  and  audit  the 
bill.  Peo.  ex  rel.  Tripp  v.  Bd.  of  Supervisors  of  Cayuga  Co.y 
22  Misc.  616,  50  Supp.  16,  84  St.  R.  16. 


l6o  MANDAMUS. 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 


Sub.  5.   When  Granted  Against  Town   and  Village  Officers. 
The  writ  will  run  to  president   of  a  village  to   compel  him  to 
sign  bonds  authorized  to  be  issued.     People  v.  White,  54  Barb.  622. 
To  a  board  of  town  auditors  to  assemble  and  audit  relator's  claim. 
People   V.  Auditors   of  Welford,  53   Barb.  555  ;    S.  C.  afifirmed,  38 
How.  (Ct.  of  App.)  23  ;  People  v.  Board  of  Audit,  4  Hun,  94.     If 
town  auditors  arbitrarily  cut  down /^r  ^z>w  services  allowed  by 
law,  it  is  no  audit  and   mandamus  will  lie.     People  v.  Toivn  Audi- 
tors, 82  N.  Y.  80.     The  writ  will  lie  to  the  county  treasurer  to  issue 
his  warrant  for  the   collection  of  a  tax,  and  the  collector  to  pay 
over  moneys.     People  v.  Brown,  55  N.  Y.  180  ;  People  v.  Halsey, 
37  id.  344.     To   compel  commissioners  to  pay  money  to  bond- 
holders.    People  v.  Mead,   24   N.   Y.   1 14.     To   enforce  contract 
made  by  town  auditors.     Richmond  Gas  Light   Co.   v.  Tozvn  of 
Middletozvn,  59  N.  Y.  228.     To  compel  commissioner  of  highway 
to  work  a  road.     People  v.  Collins,  19  Wend.  56.     To  open  a  road 
after  decision   on   appeal.      People  v.    Champion,   16  Johns.  61  ; 
People  V.  Barber,  12  Barb.  193  ;  People  v.   Commissioners,   i   Cow. 
23  ;  Ex  parte  Sanders,  id.  544.     But  see  People  v.  Commissioners, 
8  N.  Y.  476.     But  not  where  it  would  compel  them  to  trespass. 
People  v.  Commissioners,  27  Barb.  94  ;  Ex  parte  Clapper,  3  Hill,  458. 
It  will  lie  to  compel   them    to   complete  record   of  the   decision. 
People  V.  Jefferds,  2  Hun,  149.      The  writ   may  direct  change  of 
highways  and  taking  lands  for  that  purpose.     People  v.  R.  R.  Co., 
58  N.  Y.  152.  A  mandamus  will  not  issue  to  compel  commissioners 
of  highways  to  ascertain,  describe,  and  record  what  is  claimed  to 
be  an  old  road  ;  it  is  for  the  commissioners  to  decide  the  fact, 
and  it  is  beyond   the  competency  of   the  court   to  dictate  their 
decision  ;  it   seems  their   decision   may   be   reviewed.     People  v. 
Hulse,  38  Hun,  388.     The  writ  will  lie  to  inspectors  of  election 
to  compel  them  to  register  a  voter.     Matter  of  Collins,  64  How. 
63;  People  V.  Payne,    12   Abb.   N,   C.    103.     The  writ  will  lie  to 
compel  assessors  to  conform  to  order  of  county  court.     People  v. 
Supervisors,  65   N.  Y.    300.     To  ascertain   whether  consents  for 
town  bonding  have  been    obtained,    and   if  so,  make   necessary 
oath.     Howland  v.  Eldredge,  43  N.  Y.  457.     To  reduce  an  assess- 
ment  when   illegal.     People  v.   Olmstead,  45  Barb.  644.     But  not 
where  affidavits  to  procure  reduction  are  not  in  form  required  by 
law.     People  V.  Supervisors,    15    Barb.  607.     Mandamus  will  lie  to 
compel  assessors  to  strike  from  the  rolls  non-residents  illegally 


MANDAMUS.  l6l 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


assessed.  People  v.  Assessors,  44  Barb.  148.  But  not  to  compel 
assessors  to  make  oath  as  required  by  statute  where  they  have 
not  assessed  property  at  full  value.  People  v.  Foivler,  55  N.  Y. 
252.  Court  will  not  compel  discretion  of  a  board  of  education. 
People  V.  Easton,  13  Abb.  (N.  S.)  159.  Nor  to  appoint  a  teacher 
nominated  by  trustees.  People  v.  Board  of  Education,  2  Abb. 
(N.  S.)  177.  Nor  to  compel  board  to  pay  salary,  nor  to  reinstate 
a  teacher.  People  v.  Inspectors,  44  How.  322  ;  People  v.  School 
Officers,  18  Abb.  165.  It  will  compel  board  of  education  to  pay 
claim  justly  due.  Dannat  v.  Mayor,  66  N.  Y.  585.  It  will  run 
to  loan  commissioners  to  compel  them  to  pay  over  money. 
People  V.  Cotes,  i  How.  160.  But  not  to  review  act  of  command- 
ing officer  in  discharging  private  on  surgeon's  certificate.  In  re 
Dederick,  y7  N.  Y.  595.  Nor  to  restore  relator  to  roll  of  militia 
where  case  is  not  clear.  People  v.  Clark,  54  How.  488.  It  will 
not  lie  to  compel  an  overseer  of  the  poor  to  prosecute  actions 
for  penalties.     People  v.  Leonard,  74  N.  Y.  443. 

A  town  board  will  not  be  compelled  by  mandamus  to  decide 
in  a  particular  way,  when  it  concerns  the  exercise  of  a  judicial 
function,  though  they  can  be  compelled  to  determine  the  fact. 
Matter  of  Abrams  v.  Board  of  Town  Auditors,  45  Hun,  272. 
Mandamus  should  not  issue  against  a  town  board  to  compel  it 
to  audit  and  allow  relator's  claims  where  the  absolute  liability 
of  the  town  for  such  claims  is  not  established.  Peo.  ex  ret. 
Lanev.  Case,  Afi  St.  Rep.  219,  19  Supp.  625.  While  a  writ  of 
mandamus  will  not  lie  to  review  the  exercise  of  a  power,  judi- 
cial or  discretionary,  of  a  town  board,  or  to  direct  what  the  result 
of  its  exercise  shall  be,  yet  where  such  board  refuses  to  audit 
an  account,  on  the  ground  that  no  consent  or  authority  had  been 
given  to  the  relator  to  perform  the  services,  and  the  matter  turns 
upon  the  power  given  to  the  relator  by  a  resolution  of  the  board, 
the  interpretation  and  effect  of  such  resolution  may  properly 
be  determined  upon  the  hearing  of  a  writ  of  mandamus.  Peo. 
ex  rel.  Slater  V.  Smith,  83  Hun,  432,64  St.  Rep.  419,  31  Supp.  749. 
The  writ  will  lie  to  commissioners  appointed  pursuant  to  Laws 
of  1892,  chapter  493  ,providing  for  the  construction  of  highways, 
to  compel  them  to  pay  contractors  by  bond  or  by  moneys  re- 
ceived from  the  sale  thereof  as  by  statute  provided.  Peo.  ex 
rel.  Pennellv.  Treanor,  15  App.  Div.  509.  Mandamus  will  lie  to 
excise  commissioners  to  compel  them  to  decide  a  complaint,  the 


II 


l62  MANDAMUS. 


Art.    I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

evidence  in  regard  to  which  has  been  presented  to  them,  against 
a  saloonkeeper  charged  with  a  violation  of  the  statute  forbid- 
ding the  keeping  open  of  a  saloon  on  election  day.  Any  citizen 
has  a  right  to  apply  for  the  writ  in  such  a  case.  People  ex  rel. 
Welling  V.  Meakin,  56  Hun,  626,  24  Abb.  N.  C.  477,  10  Supp, 
161,  31  St.  Rep.  928. 

Sub.  6.  When    Granted  Against  Municipal    Corporations,    City 
Officers,  and  Boards. 

The  writ  will  issue  to  the  common  council  of  a  city  compelling 
them  to  proceed  in  the  matter  of  the  widening  of  a  street.  People 
V.  Common  Council  of  Brooklyn,  22  Barb.  404.  Also  to  compel 
common  council  to  order  an  election  to  fill  a  vacancy.  People  v. 
Common  Council,  yy  N.  Y.  503.  But  not  to  compel  common 
council  to  confirm  assessment  of  damages,  there  being  another 
remedy.  People  v.  Brooklyn,  i  Wend.  318.  Nor  to  compel  pay- 
ment of  expenses  of  opening  street.  Bagley  v.  Green,  i  Hun,  i. 
The  writ  will  be  awarded  to  compel  the  mayor  to  grant  a  license 
{Ackleys  Case,  4  Abb.  35  ;  People  v.  Perry,  13  Barb.  206),  and  to 
administer  the  oath  of  office  to  a  person  legally  elected  {Ex  parte 
Heath,  3  Hill,  42  ;  Ackleys  Case,  4  Abb.  35);  also  to  compel  him 
to  countersign  a  warrant.  People  v.  Opdyke,  40  Barb.  306  ;  People 
V.  Havemycr,  3  Hun,  97;  People  v.  Havemyer,  47  How.  494; 
People  V.  Havemyer,  16  Abb.  (N.  S.)  219.  But  not  where  the 
claimant  is  not  entitled  to  his  money.  People  v.  Tieman,  30  Barb. 
193;  People  w.  Booth,  32  How.  17;  People  v.  Wood,  13  Abb,  374. 
Where  the  proper  authority  has  audited  a  claim,  the  comptroller 
and  auditor  may  be  directed  to  pay  it.  People  v.  Earle,  16  Abb. 
(N.  S.)  64 ;  People  v.  Earle,  47  How.  368 ;  People  v.  Earle,  46  id. 
308  ;  People  v.  Earle,  id.  267 ;  People  v.  Flagg,  16  Barb.  503 ; 
People  V.  Brennan,  45  id.  457.  It  must,  however,  be  a  concededly 
valid  claim.  People  v.  Board  of  Apportionment,  3  Hun,  ii, 
affirmed,  64  N.  Y.  627.  And  there  must  be  money  in  the  treas- 
ury to  meet  it.  People  v.  Comiolly,  2  Abb.  (N.  S.)  315.  But  see 
People  V.  Stotit,  23  Barb.  338  ;  People  v.  Haws,  12  Abb.  192.  But 
if  the  money  has  been  wrongfully  applied  the  writ  will  lie. 
People  V.  Comptroller,  77  N.  Y.  45.  But  where  the  moneys  sought 
to  be  reached  have  been  paid  to  another  claimant,  and  the  fund 
to  which  it  belonged  is  a  special  fund,  mandamus  will  not  lie. 
People  v.  O^Kcefe,  100  N.  Y.  572.     It  is  held,  however,  in  People 


MANDAMUS.  163 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


V.  Board  of  Police,  75  N.  Y.  38  (distinguished,  96  id.  239,  and  102 
id.  18),  that  the  treasurer  of  the  board  may  be  compelled  by 
mandamus  to  draw  on  the  comptroller  for  salary.  See,  also, 
Szvift  V.  Mayor,  83  N.  Y.  528.  The  writ  has  been  issued  to 
compel  comptroller  of  New  York  city  to  pay  salary  to  crier. 
People  V.  Havemyer,  47  How.  59.  Mandamus  lies  to  compel 
comptroller  to  pass  on  sufficiency  of  bonds  of  contractor.  People 
V.  Green,  50  How.  500,  affirmed,  64  N.  Y.  656.  Contra,  Matter 
of  Moore,  cited  in  8  Abb.  Dig.  200,  in  note  referring  to  72  N.  Y. 
496.  Not  granted  to  compel  comptroller  to  pay  if  he  denies 
validity  of  contract.  People  v.  Green,  66  Barb.  630.  Comptroller 
ordered  to  sign  warrant  in  case  under  charter  city  of  Troy ;  see 
People  V.  Crissey,  91  N.  Y.  616.  The  writ  will  issue  to  compel 
comptroller  to  pay  deputy  clerk  of  special  sessions.  People  v. 
Green,  58  N.  Y.  295.  But  not  to  issue  warrant  till  auditor  has 
examined.  People  v.  Green,  56  N.  Y.  476  ;  People  v.  Brennan,  18 
Abb.  100.  The  writ  will  be  awarded  to  compel  auditor  to  desig- 
nate proper  paper.  Peoples.  Brennan,  39  Barb.  651.  The  writ 
will  issue  to  compel  city  clerk  to  affix  seal  to  contract.  People  v. 
Connolly,  2  Abb.  (N.  S.)  315.  Assessors  of  New  York  city  have 
been  compelled  to  determine  damages  for  street  improvements. 
People  V.  Assessors,  53  How.  280.  It  will  also  run  to  police  board 
to  compel  them  to  restore  a  member  of  the  force.  People  v. 
Board  of  Police,  35  Barb.  527.  A  trial  and  discharge  are,  how- 
ever, judicial  acts.  People  v.  Police  Commissioners,  12  Abb.  (N. 
S.)  181.  And  the  writ  will  not  be  granted  where  relator  has 
given  up  his  position.  People  v.  Board,  26  N.  Y.  316.  It  will 
not  compel  board  to  pay  full  salary  to  sick  policeman.  People  v. 
French,  24  Hun,  263.  It  seems  that  if  the  commissioners  of 
police  should  wrongfully  dismiss  a  member  of  the  force  because 
of  an  alleged  conviction  of  a  crime  he  would  have  his  remedy  by 
mandamus  for  restoration.  People  v.  French,  102  N.  Y.  583.  It 
will  run  against  a  city  board  of  auditors.  People  v.  Green,  44 
How.  201.  But  will  not  interfere  with  their  discretion.  People 
v.  Board  of  Apportionment,  52  N.  Y.  224;  People  v.  Cooper,  24 
Hun,  337.  Issuing  of  a  permit  to  remove  night-soil  will  not  be 
compelled  by  mandamus.  Matter  of  IVessel,  13  Week.  Dig.  185. 
The  department  of  public  buildings,  having  once  acted,  will  not 
be  compelled  to  submit  the  question  passed  on  to  examiners  or 
to  act  favorably  to  relator.     People  v.  Esterbrook,  26  Hun,  401. 


164  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

The  writ  will  issue  to  compel  principal  of  a  public  school  in 
New  York  city  to  prepare  pay-roll  and  certify  to  its  correctness. 
Matter  of  Glccsc,  50  N.  Y.  Super.  473.  The  writ  will  not  lie  to 
the  police  commissioners  of  New  York  city  to  compel  them  to 
pay  salary  to  a  member  of  the  police  force  who  has  been  re- 
moved, the  right  to  the  ofBce  must  be  tried  on  certiorari.  People 
y.  Fre/u'/i,  N.  Y.  Daily  Register,  June  11,  1884.  A  mandamus 
has  been  held  to  lie  to  compel  merchants  to  remove  goods  from 
sidewalks  when  placed  there  by  permission  of  the  common 
council.  People  v.  Mayor,  N.  Y.  Daily  Register,  April  23,  1884. 
The  act  being  illegal,  the  writ  runs  against  the  municipality. 
Where  a  city  violates  a  contract,  and  proof  is  necessary  to  ascer- 
tain the  amount  of  damages,  the  remedy  is  by  action  and  not  by 
mandamus.  It  is  questioned  whether  the  writ  would  lie  after 
judgment  to  compel  levy  of  the  amount  due.  Utica  Water 
Works  Co.  V.  City  of  Utiea,  31  Hun,  426.  Where  a  contractor  is 
entitled  to  be  awarded  a  contract  and  he  has  a  remedy  at  law, 
mandamus  will  not  lie.  People  v.  TJioiiipson,  99  N.  Y.  641.  A 
mandamus  ought  not  to  issue  to  compel  the  commissioner  of 
public  works  to  give  a  permit  to  erect  columns  in  a  street  unless 
the  relator  has  the  absolute  right  so  to  do.  People  v.  Thojiipson, 
98  N.  Y.  6.  By  chapter  496,  Laws  of  1886,  mandamus  is  author- 
ized upon  refusal  of  board  of  excise  to  grant  license  in  cities  of 
over  one  hundred  and  fifty  thousand  inhabitants.  The  writ 
cannot  be  granted  by  the  city  court.  People  v.  Board  of  Excise, 
3  State  Rep.  253.  For  decision  under  the  act,  see  People  v, 
Becker,  3  State  Rep.  203,  where  alternative  mandamus  was 
granted. 

Mandamus  will  not  lie  to  the  commissioner  of  public  works 
of  a  city  to  compel  him  to  give  a  permit  for  excavation  in 
the  public  streets  in  favor  of  a  railway  corporation,  where  its 
charter  does  not  give  a  clear  legal  right  thereto.  People  ex 
rel.  Third  Avenue  R.  R.  Co.  v.  Nezvton,  112  N.  Y.  396,  21  St. 
Rep.  8,  affirming  48  Hun,  477,  reversing  14  St.  Rep.  906. 
Mandamus  will  not  lie  to  compel  the  mayor  and  municipal 
boards  of  a  city  to  revoke  a  resolution  of  the  common  council 
granting  permission  to  occupy  the  sidewalk  with  booths,  where 
the  common  council  were  legally  competent  to  pass  the  resolu- 
tion. H  the  stand  is  used  for  legal  purposes,  it  cannot  be  re- 
garded as  a  nuisance  or  an   unlawful  obstruction  of   the  streets. 


MANDAMUS.  165 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

People  ex  rel.  Meeks  v.  Mayor,  etc.,  i  Supp.  95.  Mandamus  will 
lie  to  the  comptroller  of  a  city  to  compel  him  to  pay  the  quota 
of  State  taxes  imposed  upon  a  city,  where  it  was  his  statutory 
duty  so  to  do.  People  v.  Myers,  50  Hun,  479,  20  St.  Rep.  268^ 
3  Supp.  365,  afifirmed,  112  N.  Y.  676.  Mandamus  lies  against 
commissioner  of  public  works  of  a  city  or  civil  service  board, 
in  favor  of  a  veteran  to  enforce  a  preference  given  under  Laws 
1887,  chapter  464.  Matter  of  Sullivan,  55  Hun,  285.  People  ex 
rel.  Merritt  v.  Civil  Service  Board,  13  App.  Div.  309.  Man- 
damus lies  against  the  treasurer  of  a  city  to  compel  him  to 
accept  the  face  of  and  cancel  certain  taxes  without  interest, 
where  the  legislature  has  relevied  the  amount  of  an  original 
tax  which  was  void.  People  ex  rel.  Flower  v.  Bleckivenn,  55  Hun, 
169,  affirmed,  129  N.  Y.  637. 

Before  applying  for  a  mandamus  to  a  board  of  education  to 
compel  the  admission  of  a  child  to  a  ward  school,  the  relator 
must  have  exhausted  all  other  remedies  ;  it  seems  that  such  ad- 
mission will  not  be  compelled  where  there  is  no  room  to  seat  the 
child.     People  ex  rel.  UlricJi  v.  Board  of  Education,  4  Supp.  102. 

Mandamus  will  lie  to  the  trustees  of  common  schools,  to 
compel  them  to  reinstate  a  teacher  unlawfully  discharged. 
People  ex  rel.  Stanley  v.  Van  Siclen,  43  Hun,  537.  Mandamus 
lies  to  the  commissioners  of  excise  of  a  city  to  review  their 
action  in  refusing  a  license,  the  right  of  such  writ  being  given 
under  Laws  1886,  chapter  496.  People  ex  rel.  Kruse  v.  Woodman, 
16  St.  Rep.  715.  A  board  of  police  will  not  be  compelled  by 
mandamus  to  retire  a  policeman  and  put  him  on  the  pension 
list  where  he  sought  to  be  retired  for  the  purpose  of  evading 
trial  and  arraignment  for  misconduct.  People  ex  rel.  Tuck  v. 
French,  108  N.  Y.  105,  affirming  44  Hun  24.  Mandamus  will 
not  lie  to  police  commissioners  to  enforce  the  excise  law  unless 
it  appears  that  such  officers  do  not  intend  to  enforce  the  stat- 
ute. In  re  Whitney,  3  Supp.  838,  24  St.  Rep.  968.  The  writ 
will  not  lie  to  a  commissioner  of  public  works  of  a  city  direct- 
ing him  to  remove  obstructions  from  the  street,  where  such 
obstructions  are  erected  under  color  of  legislative  authority 
in  a  comparatively  uninhabited  part  of  the  city  and  cause  no 
apparent  or  substantial  loss.  People  ex  rel.  Lynch  v.  ManJiattan 
Ry.  Co.,  20  Abb.  N.  C.  393.  The  writ  lies  to  compel  a  com- 
missioner of  public  works  of  a  city  to  issue  a  permit  to  a  railroad 


t66  mandamus. 


Art.   I.     Nature  of  the  Writ  •  When  and  Against  Whom  Allowed. 

corporation  to  alter  its  system  for  moving  cars  where  it  is  en- 
titled to  do  so  on  complying  with  certain  legislation.  Matter  vf 
Petition  of  T.  A.  R.  R.  Co.,  121  N.  Y.  536,  reversing  56  Hun,  537. 
Mandamus  will  not  lie  against  the  mayor  of  the  city  to  compel 
him  to  draw  his  warrant  on  a  citj^  treasurer  in  favor  of  a  con- 
tractor, where  it  appears  that  there  were  other  bids  lower  than 
those  of  the  relator,  and  the  municipal  charter  provided  that  con- 
tract work  shall  be  let  to  the  lowest  bidder.  People  ex  rel. 
Coughlin  V.  Glcason,  121  N.  Y.  631. 

Mandamus  will  not  lie  to  a  board  of  village  trustees  to  compel 
them  to  fill  an  alleged  vacancy  in  of^ce  where  it  is  already  oc- 
cupied under  color  of  title.  People  ex  rel.  Wilson  v.  Village  of 
Mt.  Vernon,  59  Hun,  204.  Mandamus  will  not  lie  to  police  com- 
missioners to  require  them  to  place  the  name  of  a  widow  of  an 
ofificer  upon  the  pension  roll  where  it  is  a  matter  of  discretion 
with  the  board.  People  ex  rel.  Bliel  v.  Martin,  32  St.  Rep.  440, 
afifirmed,  131  N.  Y.  196.  Mandamus  lies  to  compel  the  assessors 
of  a  city  to  correct  clerical  errors  when  the  charter  directs 
them  so  to  do.  People  ex  rel.  Nostrandv.  Wilson,  119  N.  Y.  515. 
The  writ  will  not  lie  to  a  commissioner  of  public  works  of  a 
city  to  compel  the  granting  of  a  permit  to  the  relator  for  the 
construction  of  an  underground  railroad,  if  the  right  thereto  is 
not  free  from  doubt  and  no  reason  is  apparent  why  the  rights  of 
the  relator  should  not  be  asserted  by  a  regular  action  at  law. 
People  ex  rel.  N.  Y.  U.  R.  Co.  v.  Newton,  34  St.  Rep.  584,  19  Civ. 
Pro.  416,  II  Supp.  782. 

Mandamus  will  not  lie  to  the  common  council  of  a  city  com- 
pelling it  to  declare  a  candidate  elected  when  the  question 
as  to  which  person  was  elected  is  contested,  and  the  common 
council  under  the  city  charter  are  judges  as  to  such  election. 
Halloran  v.  Carter,  35  St.  Rep.  884,  13  Supp.  214.  The  writ 
will  not  lie  to  compel  a  registrar  of  deeds  to  receive  satisfac- 
tions of  mortgages  and  to  discharge  the  same  where  the  mort- 
gages had  not  yet  been  paid  and  the  petitioner  was  not  the 
holder  of  any  satisfaction  piece  ;  the  reason  for  the  refusal  of 
the  writ  being  that  it  sought  to  compel  action  of  a  public  ofificer 
in  case  of  the  happening  of  some  future  event.  People  ex  rel. 
Sayles  v.  Fitzgerald,  37  St.  Rep.  540,  3  Supp.  663,  afifirmcd  with- 
out opinion,  128  N.  Y.  620. 

The  writ  will   not   lie  to  a  board   of  education   to   compel   the 


MANDAMUS.  167 


Art.   I.     Natnre  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

payment  of  the  salary  of  a  public  school  teacher  who  has  been 
removed  from  office  and  subsequently  reinstated.  The  most 
that  such  an  one  could  require  would  be  to  have  his  name  put 
upon  the  pay-rolls.  He  should  be  left  to  this  action  at  law  to 
enforce  payment.  People  ex  rel.  Steinson  v.  Board  of  Education, 
60  Hun,  486,  15  Supp.  308.  Mandamus  will  not  lie  to  compel  a 
city  officer  to  perform  an  act  which  will  work  a  public  and  pri- 
vate mischief,  or  to  compel  compliance  with  the  letter  of  the 
law  in  disregard  of  its  spirit  or  in  aid  of  a  public  fraud.  People 
ex  rel.  Wood  v.  Assessors,  137  N.  Y.  201,  50  St.  Rep.  404. 

Mandamus  will  lie  to  compel  a  city  to  complete  its  purchase  after 
the  approval  of  the  tax  for  such  purpose  by  the  electors.  Weston 
V.  Citj^  of  NczvburgJi,  6y  Hun,  127,  51  St.  Rep.  414,  22  Supp.  22. 
But  compare  Peo.  ex  rel.  Ryan  v.  Aldridge,  83  Hun,  279,  post. 
The  writ  will  lie  to  a  board  of  estimate  and  apportionment  to 
compel  it  to  examine  the  relator's  claim  against  the  city  where 
it  was  authorized  so  to  do  by  act  of  the  legislature.  The  author- 
ity to  audit  it  carried  with  it  the  duty,  and  is  of  a  mandatory 
character.  People  ex  rel.  Kcllncr  \'.  The  Mayor,  etc.,  3  Misc.  131. 
The  writ  will  lie  to  a  common  council  to  compel  the  audit 
and  payment  of  a  claim  against  the  city  when  the  charter  directs 
them  so  to  do,  even  though  the  statute  under  which  the  award 
was  made  was  repealed  before  the  claim  was  audited.  People  ex 
rel.  Reynolds  v.  City  of  Buffalo,  2  Misc.  7,  49  St.  Rep.  576,  21 
Supp.  601.  Where  the  contracting  board  of  a  municipality  is  re- 
quired by  law  to  award  a  contract  to  the  lowest  bidder,  and  the  per- 
son making  the  lowest  bid  has  in  all  respects  complied  with  the  law, 
the  board  will  be  compelled  by  mandamus  to  award  him  the  con- 
tract. People  ex  rel.  MattJiewsdf  Co.  \.  City  of  Buffalo,  5  Misc.  36. 
Mandamus  will  not  lie  to  the  mayor  of  a  city  to  compel  him 
to  initiate  proceedings  to  remove  an  obstruction  to  the  streets 
where  he  has  a  discretion  in  regard  thereto.  Such  discretion  is 
not  affected  by  a  resolution  of  the  common  council  requesting 
the  mayor  to  take  such  proceedings.  People  ex  rel.  Wooster  v. 
Maker,  141  N.  Y.  330,  57  St.  Rep.  425. 

Mandamus  will  not  lie  against  the  commissioner  of  city  parks 
to  compel  the  reinstatement  of  relator,  he  being  an  honorably 
discharged  soldier,  where  he  is  guilty  of  laches  in  waiting  over 
tv  )  years  before  instituting  the  proceeding.  Matter  of  Gaffney, 
84  Hun,  503,  66  St.  Rep.   153,  32  Supp.  873.     Mandamus  is  the 


l68  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

proper  remedy  to  secure  the  reinstatement  of  a  veteran  holding 
a  position  as  clerk  from  which  he  can  be  discharged  only  for  cause. 
People  ex  rcl.  Drake  v.  Sutton,  88  Hun,  173,  68  St.  Rep.  494,  34 
Supp.  487.  In  mandamus  proceedings  against  the  comptroller  of 
a  city,  the  court  will  not  consider  questions  as  to  the  propriety 
of  items  included  in  an  award  of  damages  made  by  commissioners 
authorized  by  law  to  ascertain  the  amount  of  damages  to  lands 
suffered  by  reason  of  changes  in  the  grade  of  streets  or  avenues. 
People  ex  rcl.  Purdy  v.  Fitch,  147  N.  Y.  355,  reversing  87  Hun, 
304,  68  St.  Rep.  320. 

Mandam.us  to  the  mayor  of  a  city  to  compel  the  performance 
of  a  duty  which  rests  in  contract  merely  will  not  be  granted.  It 
would  be  in  the  nature  of  an  action  in  equity  for  the  specific  per- 
formance of  a  contract.  A  municipality,  no  more  than  a  private 
person,  can  be  compelled  to  prosecute  an  enterprise  beyond  the 
point  at  which  it  sees  fit  to  discontinue.  The  only  remedy  is  by 
action  for  breach  of  contract.  People  ex  rcl.  Ryan  v.  Aldridge, 
83  Hun,  279,  64  St.  Rep.  727,  31  Supp.  920.  But  compare 
Weston  V.  City  of  Newburgh,  6-j  Hun,  127,  supra. 

Mandamus  will  not  lie  to  review  the  discretion  of  a  board  of 
education  in  dismissing  a  public  school  teacher.  The  remedy  is 
hy  certiorari.  Jordan  v.  Board  of  Education,  14  Misc.  119,  69 
St.  Rep.  622,  35  Supp.  247.  While  mandamus  will  issue  to  the 
officers  of  a  city  to  compel  the  examination  and  audit  of  claims, 
yet  it  will  not  issue  to  direct  the  mayor  to  draw  a  certified 
warrant  upon  the  treasury,  where  the  duty  involved  the  con- 
sideration of  evidence  upon  the  subject  and  the  judicial  deter- 
mination of  facts.  People  ex  rel.  Kings  County  Gas  Co.  v. 
Schicren,  89  Hun,  220,  35  Supp.  64,  69  St.  Rep.  243.  Where  a 
contract  for  municiind  improvements  provides  for  its  payment 
by  issue  of  bonds,  and  the  city  treasurer  refuses  to  issue  them, 
mandamus  will  lie  to  compel  him  to  do  so  on  the  relation  of  the 
contractor.  Shcehan  v.  Treasurer  of  Long  Island  City,  ii  Misc. 
487,  dj  St.  Rep.  277,  33  Supp.  428.  A  peremptory  writ  of  man- 
damus against  a  mayor  and  common  council  of  a  city  to  compel 
the  reinstatement  of  relator  to  a  public  ofiicc  will  not  lie  where 
the  question  as  to  the  abolition  of  the  office  in  good  faith  by  the 
municipality  is  raised,  though  an  alternative  writ  should  issue  for 
the  trial  of  such  questions.  People  ex  rel.  Corrigan  v.  Mayor, 
149  N.  Y.  215. 


MANDAMUS.  1 69 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


Mandamus  will  not  lie  to  restore  an  honorably  discharged 
veteran  to  a  city  office  where  another  is  holding  by  color  of 
right,  especially  where  there  are  questions  of  statutory  construc- 
tion involved  which  are  not  clear  and  unambiguous.  Matter  of 
Hardy,  17  Misc.  66"].  Where  the  mayor  of  a  city  refuses  to  make 
classifications  of  civil  service  positions  as  required  by  statute, 
or  if  he  does  it  improperly,  he  may  be  compelled  by  mandamus, 
or  in  some  cases  by  certiorari,  to  do  his  duty  in  this  respect  ; 
but  a  taxpayer's  action  to  restrain  the  payment  of  salaries 
earned  by  appointee  is  not  an  appropriate  remedy.  Chittenden 
v.  Wurster,  152  N.  Y.  345,  reversing  14  App.  Div.  483. 

The  alternative  writ  is  a  proper  means  of  determining  whether 
the  relator,  an  honorably  discharged  soldier,  was  performing  the 
same  duties  as  one  not  a  solder,  where  the  relator  has  been  dis- 
charged in  violation  of  the  statutory  preference.  Matter  of 
MeCloskey  v.  Willis,  15  App.  Div.  594.  The  comptroller  of  a 
city  will  not  be  compelled  by  mandamus  to  pay  a  salary  which 
he  has  already  paid  to  one  de  facto  in  office  under  color  of 
title.     Matter  of  Grady,  15   App.  Div.  504. 

Mandamus  lies  to  the  commissioner  of  public  works  of  a  city 
to  compel  him  to  grant  a  permit  to  repair  a  vault  under  a  side- 
walk where  such  permit  has  been  granted  with  the  illegal  con- 
dition that  the  relator  pay  a  certain  sum.  The  writ  will  compel 
the  issuing  of  the  permit  without  the  condition  of  payment. 
People  ex  rel.  Ziegler  v.  Collis,  17  App.  Div.  449.  Mandamus 
will  not  lie  to  officers  of  a  city  to  compel  them  to  restore  a 
person  to  an  office  which  has  been  abolished  in  good  faith. 
People  ex  rel.  Linnekin  v.  Ennis,  18  App.  Div.  412.  Where  a 
question  is  raised  as  to  whether  a  municipal  office  was  abolished 
in  good  faith,  only  the  alternative  writ  can  issue  and  the  relator 
should  move  promptly  ;  a  delay  of  ten  months  requires  explana- 
tion. People  ex  rel.  Vanderhoof  v.  Palmer,  3  App.  Div.  389. 
Mandamus  will  not  lie  to  compel  the  city  clerk  to  grant  an 
auctioneer's  license  to  a  corporation,  as  the  statute  is  not  man- 
datory but  simply  gives  him  authority,  and  he  has  a  right  to 
exercise  his  discretion  in  acting  upon  the  application  and  to  re- 
fuse it  where  the  associates  in  the  corporation  are  not  known  to 
him.  Peo.  ex  rel.  United  Auctioneers  v.  Scully,  23  Misc.  732,  53 
Supp.  125,  87  St.  Rep.  125.  A  mandamus  will  not  lie  to  rein- 
state a  fireman  illegally  retired   and  placed  on  the   pension-roll, 


I/O 


MANDAMUS. 


Art.    I.      Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 


where  he  failed  to  complain  of  such  retirement  for  two  years, 
and  his  papers  do  not  show  whether  he  drew  his  pension  during 
that  time  and  whether  the  position  had  been  filled.  Pco.  ex  rcl. 
Shea  X.  Bryant,  28  App.  Div.  480,  51  Supp.  i  19,  85  St.  Rep.  119. 

Sub.  7.   When  Granted  Against  Election  Officers. 

This  subject  is  treated  more  fully,  and  the  statute  is  cited  and 
precedents   are   given,  under  "  Procedure   Under  Election  Law." 

Where  there  is  reasonable  ground  to  believe  that  the  returns 
are  not  accurate,  a  mandamus  will  issue  requiring  county  can- 
vassers to  remit  such  returns  to  the  inspectors  for  such  correction 
as  they  may  see  fit  to  make.  People  ex  rel.  Sanderson  v.  Super- 
visors of  Greene,  12  Abb.  N.  C.  95.  Canvassers  at  town  meetings 
may  be  compelled  by  mandamus  to  canvass  return.  People  v. 
Schiellein,  95  N.  Y.  124.  The  writ  will  not  lie  to  compel  clerk  of 
board  to  recognize  relator  as  member  of  the  board.  Matter  of 
Gardner,  68  N.  Y.  467.  Nor  to  compel  the  board  to  levy  tax 
where  there  is  right  of  action  on  town  bonds.  Marsh  v.  Tozvn  of 
Little  Valley,  64  N.  Y.  112.  The  writ  will  not  lie  to  county  can- 
vassers to  send  back  returns  where  there  is  no  clerical  error  but 
a  fraudulent  alteration.  People  v.  Supervisors,  58  How.  141. 
Nor  to  compel  them  to  reassemble,  having  once  acted.  People 
V.  Supervisors,  \2  Barb.  217,  distinguished,  95  N.  Y.  133.  But 
see,  contra.  People  v.  Canvassers,  64  How.  201.  Under  Laws  1880, 
chap.  460,  mandamus  issued  to  county  canvassers  in  People  v. 
Canvassers  of  Wayne,  12  Abb.  N.  C.  77,  and  Korta  v.  Canvassers 
of  Greene,  id.  84—95- 

As  to  the  general  power  of  the  court  over  the  canvass  of 
votes,  see  People  ex  rel.  Russell  v.  Canvassers,  20  Abb.  N.  C.  24, 
note. 

The  board  of  county  canvassers  will  be  compelled  by  manda- 
mus to  canvass  the  duplicate  return  of  the  inspectors  of  election 
filed  with  the  county  clerk,  as  required  by  Laws  1880,  chap.  56, 
§  14,  in  the  absence  of  the  proper  original.  People  ex  rel.  Russell 
V.  Canvassers,  20  Abb.  N.  C.  19,  46  Hun,  390. 

A  peremptory  mandamus  will  lie  to  inspectors  of  election  to 
compel  them  to  af^x  their  signatures  to  election  returns  when  it 
appears  that  they  refuse  so  to  do  upon  the  ground  that  fraudulent 
votes  were  cast  by  persons  who  nevertheless  had  complied  with 
the  statutory  tests;  inspectors  of  election  are  simply  ministerial 


MANDAMUS.  I/I 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 


officers  without  discretionary  power  to  reject  a  vote.      People  ex 
rel.  Stapleton  v.  Bell,  119  N.  Y.  175,  affirming  54  Hun,  567. 

Mandamus  will  not  lie  to  a  board  of  canvassers  to  compel  it  to 
omit  from  its  canvass  votes  which  are  alleged  to  be  feloniously 
substituted  in  the  place  of  the  true  vote  of  the  district,  where  it 
appears  that  no  other  return  exists  to  be  canvassed ;  yet,  if 
there  were  two  returns  and  the  canvassers  had  determined  to  can- 
vass the  false  instead  of  the  true,  the  court  might  correct  such 
error.  People  ex  rel.  Gregg  v.  Board  of  Canvassers,  54  Hun,  594. 
Mandamus  will  not  lie  to  a  board  of  canvassers  to  compel 
it  to  issue  a  certificate  of  election  to  one  who  has  no  right 
under  the  Constitution  to  hold  the  office.  People  ex  rel.  Sher- 
wood V.  Board  of  Canvassers,  129  N.  Y.  360,  41  St.  Rep.  912. 
Mandamus  lies  to  the  State  board  of  canvassers  to  compel 
it  to  reject  and  disregard  a  paper  purporting  to  be  a  return  of 
a  board  of  canvassers,  but  which  is  not  properly  signed  and 
certified,  and  does  not  give  the  results  of  a  legal  canvass,  and  to 
compel  it  to  consider  a  proper  return.  People  ex  rel.  Daley  v. 
Riee,  129  N.  Y.  449,  41  St.  Rep.  938.  Mandamus  will  lie  to  com- 
pel  a  county  board  of  canvassers  to  send  back  to  the  inspectors 
for  correction  returns  upon  which  the  names  of  candidates  are  in- 
correctly given  or  misspelled  ;  but  the  writ  will  not  lie  to  compel 
the  canvassers  to  canvass  returns,  when  it  is  proven  that  such 
returns  are  illegal  because  of  a  violation  of  the  statute  by  the 
inspectors  in  receiving  and  counting  certain  votes.  People  ex  rel. 
Miinroe  v.  Bd.  of  Canvassers,  129  N.  Y.  469.  Until  the  legal 
presumption  that  the  State  board  of  canvassers  will  perform  its 
statutory  duty  is  overcome,  a  peremptory  mandamus  will  not 
lie.      People  ex  rel.  Derby  v.  Rice,  129  N.  Y.  465. 

A  peremptory  mandamus  will  not  issue  under  Laws  1890,  chap. 
262,  as  amended,  where  there  is  a  question  whether  an  inspector 
of  election  or  a  watcher  declared  his  belief  that  ballots  were  marked 
for  the  purpose  of  identification,  though  it  seems  that  in  such 
case  an  alternative  writ  might  issue.  People  ex  rel.  Bush  v. 
MeKenzie,  66  Hun,  265,  49  St.  Rep.  527,  21  Supp.  279. 

A  writ  of  mandamus  to  compel  inspectors  of  election  to  cor- 
rect the  canvass  by  striking  out  votes  given  by  women  will  not 
be  granted,  as  the  board  of  canvassers  cannot  exercise  the  high 
judicial  function  of  passing  upon  the  constitutionality  of  a 
statute.     The  writ  will  only  lie  to  compel  them  to   correct  cler- 


172  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

ical  errors,  etc.  Matter  of  Woods,  5  Misc.  575.  Mandamus  will 
lie  to  compel  canvassers  to  send  back  to  the  inspectors  for  cor- 
rection returns  which  do  not  show  upon  their  face  that  any  par- 
ticular person  received  any  votes  whatsoever,  and  which  do  not 
contain  a  statement  of  the  number  of  general  ballots  protested 
as  being  "  marked  for  identification."  People  ex  rel.  Ranton  City 
of  Syr  excuse,  88  Hun,  203.  Inspectors  of  election  may  be  com- 
pelled to  correct  clerical  errors,  but  the  returns  will  not  be  sent 
back  to  them  for  a  recount.  People  ex  rel.  Noyes  v.  Bd.  of 
Canvassers,  126  N.  Y.  392.  Or  for  a  new  canvass  where  they 
have  once  made  one.  People  ex  rel.  Fisk  v.  Deverinann,  83 
Hun,  181. 

Boards  of  canvassers  have  no  power  to  correct  frauds  or  rectify 
mistakes  other  than  clerical  mistakes ;  their  duty  is  simply  to 
add  together  the  statement  of  results  filed  with  them  by  in- 
spectors. People  ex  rel.  Blodgett  v.  Bd.  of  Canvassers  of  Coey- 
mans,  44  St.  Rep.  738.  A  mandamus  is  proper  to  compel  a 
board  of  county  canvassers  to  refrain  from  canvassing  irreg- 
ular returns.  People  ex  rel.  Russell  v.  Board,  46  Hun,  390. 
Inspectors  of  election  are  mere  ministerial  officers,  and  if  an 
applicant  makes  the  required  statement  under  the  required  oath 
or  affirmation,  his  name  must  be  added  to  the  list  of  voters,  and 
the  inspectors  have  no  discretion  to  refuse  to  add  it.  Where  a 
voter  offers  his  vote  to  the  inspectors,  and,  if  challenged,  takes 
the  proper  oath,  and  after  answering  fully  the  questions  touching 
his  right  to  vote,  offers  to  take  the  general  oath,  it  is  the  absolute 
duty  of  the  inspectors  to  receive  his  vote.  If  in  such  a  case  the 
inspectors  refuse  to  take  his  vote,  and  he  is  a  legal  voter,  he  can 
compel  them  to  take  it  by  mandamus.  If  it  appears  from  undis- 
puted facts  that  he  is  not  entitled  to  vote,  the  writ  should  not 
be  granted.  People  ex  rel.  Sherwood  v.  Board  of  Canvassers,  129 
N.  Y.  360  (at  372),  citing  People  v.  Pease,  27  N.  Y.  45,  Gocteheus 
V.  Mattheivson,  61  N.  Y.  420;  People  ex  rel.  Stapleton  v.  Bell,  119 
N.  Y.  175. 

In  proceedings  for  mandamus  requiring  a  recount  and  rejec- 
tion of  ballots  marked  objected  to  as  marked  for  identification, 
the  court  may  inspect  the  ballots,  and  in  the  exercise  of  its  com- 
mon-law jurisdiction  direct  their  exclusion  if  found  to  be  void 
under  the  statute  on  other  grounds.  People  ex  rel.  White  v. 
Board  of  Aldermen,  31  App.  Div.438,  52  Supp.  643,86  St. Rep. 643. 


MANDAMUS.  1 73 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

Tlie  Supreme  Court  has  jurisdiction,  in  proceedings  instituted 
under  §114  of  the  Election  Law,  to  issue  a  mandamus  to  the 
board  or  body  of  canvassers  or  inspectors  of  election,  requiring 
a  recount  of  the  vote  upon  which  ballots  marked  "  protested  " 
and  the  reason  therefor  shall  be  excluded.  People  ex  rel.  \VJiite\. 
Bd.  of  Aldermen,  31  App.  Div.  438,  52  Supp.  643,  86  St.  Rep.  643. 

An  order  of  the  appellate  division  determining  a  proceeding 
by  mandamus  to  compel  a  recount  and  the  allowance  or  rejection 
of  ballots  objected  to  as  marked  for  identification  or  rejected  as 
void  is  one  finally  deciding  a  special  proceeding,  and  where  only 
questions  of  law  are  involved  is  appealable,  as  of  right,  to  the 
Court  of  Appeals,  and  in  such  case  it  is  the  duty  of  that  court  to 
examine  the  ballots  and  determine  their  validity.  Peo.  ex  rel. 
Feeney  v.  Bd.  of  Canvassers  RicJmiond  Co.,  156  N.  Y.  36,  50  N.  E. 
Rep.  425. 

Mandamus  will  lie  to  compel  a  recanvass  of  ballots  rejected  at  a 
town  meeting  on  a  separate  vote  under  the  Liquor  Tax  Law.  Peo. 
ex  rel.  Decker  v.  Parnielce,  22  Misc.  380,  50  Supp.  451,  84  St.  Rep. 
451.  The  tally  sheet  is  the  original  of^cial  record  of  the  canvass 
which  is  controlling  as  to  the  result,  and  where  the  statements 
of  the  inspectors  are  attacked  for  fraud  or  mistake  the  inspectors 
may  be  required  by  mandamus  to  correct  them  in  accordance 
with  the  tally  sheets.  Matter  of  Stewart,  155  N.  Y.  545,  50  N.  E. 
R.  5i,afifirming  24  App.  Div.  201,  48  Supp.  957,  82  St.  Rep.  957. 

A  tally  sheet  is  an  essential  part  of  the  canvass,  and  the  in- 
spectors may  be  compelled  by  mandamus  to  make  their  returns 
agree  with  the  tally  sheets.  Matter  of  Stewart,  24  App.  Div. 
201,  48  Supp.  957,  82  St.  Rep.  957. 

Sub.    8.    When  Granted   Against  Private  Corporations  and 

Associations. 

The  writ  will  lie  to  corporations  to  compel  them  to  act  in  the 
line  of  their  duty,  and  in  cases  where  they  have  no  discretion  as 
to  the  particular  manner  in  which  they  shall  act.  People  v. 
Judges  Dutchess  Common  Pleas,  20  Wend.  658  ;  People  v.  Steele,  i 
Edm.  505.  Where  they  have  a  discretion,  the  writ  will  simply 
put  them  in  motion  in  the  line  of  their  duty.  People  v.  Collins, 
19  Wend.  56  ;  Fish  v.  Weatherwax,  2  Johns.  Cas.  215  ;  People  v. 
Brennan,  i  Abb.  (N.  S.)  184.  A  corporation  will  be  compelled 
to  hold  an  election.     People  v.  Albany  Hospital,  1 1  Abb.  (N.  S.)  4  ; 


174  MANDAMUS. 


Art.    I.     Nature  of  the  Writ  ;  Whc-n  and  Against  Whom  Allowed. 

People  V.  Ciinimi7tgs,  72  N.  Y,  433.  Mandamus  is  remedy  to  re- 
store person  to  membership  in  benevolent  corporation.  Doyle  v. 
Benevolent  Society,  3  Hun,  361.  -  To  admit  a  member  to  a  medical 
society.  People  v.  Medical  Society  of  Erie,  32  N.  Y.  187.  To 
compel  a  church  to  admit  a  member  to  the  pulpit.  People  v. 
Steele,  I  Edm.  505.  It  will  be  granted  to  restore  one  to  member, 
ship  in  a  corporation  from  which  he  has  been  improperly  expelled 
People  V.  Benevolent  Society,  3  Hun,  361  ;  People  v.  Ajnerican  hi- 
stitute,  44  How.  468  ;  People  v.  Benevolent  Society,  24  id.  216; 
People  V.  Coj)ii)iercial  Association,  18  Abb.  271.  But  he  must 
show  a  clear  legal  right.  People  v.  Underivriters,  7  Hun,  248. 
It  lies  to  compel  railroad  company  to  erect  fences.  People  v. 
Rochester,  etc.,  R.  R.,  14  Hun,  371,  af^rmed,  76  N.  Y.  294  ;  People 
V.  Albany  &  Boston  R.  R.,  7  id.  569.  But  not  to  compel  a  com- 
pany to  operate  two  lines  of  road  where  one  would  accommodate 
the  public.  People  v.  Rome,  etc.,  R.  R.  Co.,  103  N.  Y.  95.  To 
compel  corporation  to  supply  gas.  People  v.  Manhattan  Gas 
Co.,  I  Abb.  (N.  S.)  404.  It  is  held  in  People  v.  Stevens,  5  Hill, 
616,  that  the  writ  will  not  lie  to  compel  delivery  of  books. 
In  People  v.  Hines,  10  Week.  Dig.  88,  this  is  held  with  the  quali- 
fication, unless  successor  is  concededly  entitled  to  of^ce.  The 
writ  will  be  granted  to  compel  inspection  of  books  of  the  cor- 
poration by  officer  or  stockholder.  People  v.  Throop,  12  Wend. 
183  ;  People  v.  Pacific  Mail,  3  Abb.  (N.  S.)  364;  People  v.  Mott, 
I  How.  247  ;  Sage  v.  Lake  Shore  R.  R.,  16  Alb.  L.  J.  102,  Ct.  of 
App. ;  People  v.  Lake  Shore,  etc.,  ii  Hun,  i  ;  70  N.  Y.  220.  See 
50  N.  Y.  Super.  456.  Issued  to  compel  officer  of  corpora- 
tion who  had  lien  on  books  to  allow  an  inspection.  People  v. 
German  Hospital,  8  Abb.  N.  C.  332.  To  compel  corporation  to 
correct  certificate   of    death.     People  v.  Scheel,  8  Abb.  N.  C.  342. 

The  writ  lies  to  private  corporations  only  where  the  duty  con- 
cerned and  attempted  to  be  coerced  is  specific  and  plainly  im- 
posed upon  the  corporation.  People  v.  N.  V.,  L.  E.  &  IV.  R.  R. 
Co.,  104  N.  Y.  58,  reversing 40  Hun,  57. 

Mandamus  lies  to  a  telephone  company  to  compel  it  to  place 
its  instruments  in  relator's  ofifice  on  his  compliance  with  the  usual 
terms  and  reasonable  regulations.  People  ex  rel.  Postal  Telegraph 
Co.  V,  Hudson  River  Telegraph  Co.,  19  Abb.  N.  C.  466.  Man- 
damus lies  to  a  corporation  to  compel  its  officers  to  exhibit  the 
stock   book   to  a   stockholder,  and  it  is   immaterial   whether  the 


MANDAMUS.  175 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

transfer  of  stock  to  the  relator  was  merely  colorable  or  whether 
there  were  any  consideration  therefor,  or  what  was  the  occasion 
for  the  transfer.  People  ex  rel.  Harriman  v.  Paton,  20  Abb.  N.  C. 
172.  Where  a  stockholder  applies  in  person  to  inspect  the  stock 
book  of  a  corporation  and  is  refused,  he  is  entitled  to  mandamus 
as  an  absolute  right,  but  the  demand  must  be  by  the  stockholder  ; 
demand  by  his  attorney  is  insufficient.  People  ex  rel.  McDonald 
V.  U.  S.  Mercantile  Rep.  Co.,  20  Abb.  N.  C.  192. 

Mandamus  lies  to  compel  the  rector  of  a  church  to  give 
notice  of  the  election  of  churchwardens  and  vestrymen.  St. 
Stephen  Church  Cases,  25  Abb.  N.  C.  250.  And  it  lies  to  the 
rector  to  compel  him  to  join  with  the  trustees  in  calling  an 
election  to  fill  vacancies,  and  in  such  case  a  referee  may  be  ap- 
pointed as  inspector  and  judge  of  the  qualification  of  electors  and 
to  see  that  the  writ  is  fully  obeyed.  St.  Stephoi  Church  Cases, 
25  Abb.  N.  C.  258.  Mandamus  will  lie  to  the  board  of  man- 
agers of  a  State  asylum  to  compel  them  to  make  certificates  as 
to  material,  etc.,  furnished  under  a  contract,  when  payment  upon 
the  contract  was  to  be  made  on  the  certificate.  People  ex  rel. 
Peck  V.  Board  of  Managers,  28  St.  Rep.  886,  8  Supp.  395.  A 
writ  lies  to  a  mutual  protective  union  to  compel  the  restoration 
of  a  member  expelled  in  violation  of  the  by-laws,  and  in  such 
case  damages  arising  therefrom  may  be  awarded.  People  ex 
rel.  Deverell  v.  M.  M.  P.  Union,  1 18  N.  Y.  loi,  27  St.  Rep.  963. 
The  writ  will  not  lie  to  restore  the  relator  to  the  ofifice  of 
manager  of  a  corporation  where  his  right  thereto  is  doubtfuL 
People  ex  rel.  Nichollv.  New  York  Infant  Asylum,  122  N.  Y.  190, 
33  St.  Rep.  296.  Mandamus  will  lie  to  a  medical  college  ta 
compel  the  giving  of  a  degree  to  a  student,  who  has  complied 
with  its  terms,  when  it  is  unjustly  refused.  People  ex  rel.  Cecil 
V.  Belleviie  Hospital,  60  Hun,  107,  38  St.  Rep.  418,  14  Supp» 
490,  affirmed,  128  N.  Y.  621.  But  mandamus  will  not  lie  to  a 
medical  college  to  compel  the  issue  of  a  diploma  to  a  student 
where  the  faculty  have  discretion  in  passing  upon  his  qualifica- 
tions and  have  passed  upon  them.  People  ex  rel.  Jones  v.  A^.  Y., 
H.  M.  C.  &  H.,  47  St.  Rep.  395.  Mandamus  is  not  the  proper 
remedy  in  the  case  of  the  removal  of  a  college  professor  ;  the 
remedy,  if  any,  is  by  action  for  salary,  or  other  emolument. 
Peo.  ex  rel.  Kelsey  v.  N.  Y.  Post  Graduate  Medical  School  & 
Hospital,  29  App.  Div.  244,  51  Supp.  420,  85   St.  Rep.  420.     Nor 


176 


MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


will  it  lie  to  a  law  school  to  compel  the  giving  of  a  degree 
where  the  faculty  has  refused,  in  its  discretion,  so  to  do,  though 
mandamus  may  compel  the  giving  of  a  certificate  of  attendance. 
People  ex  rcl.  G Sullivan  v.  N.  V.  Law  School,  68  Hun,  118,  52  St. 
Rep.  14,  22  Supp.  663. 

Mandamus  lies  to  a  transfer  agent  of  a  foreign  corporation  to 
compel  him  to  allow  an  inspection  of  the  transfer  books  under 
chapter  688  of  the  Laws  1892.  People  ex  rcl.  Daniels  v.  Crawford, 
68  Hun,  547,  52  St.  Rep.  476,  22  Supp.  1025. 

But  a  peremptory  writ  will  not  issue  to  such  agent  of  a  foreign 
corporation  where  the  afifidavits  show  that  the  books  are  at  the 
home  office  and  not  under  his  control.  People  ex  rcl.  Hoffman  v. 
Tedcastle,  12  Misc.  468,  68  St.  Rep.  135,   34  Supp.  257. 

Mandamus  lies  to  a  benevolent  society  compelling  it  to  reinstate 
a  member  expelled  without  personal  notice.  People  ex  rel.  Grun- 
tvald  v./.  O.  Ahavas  Israel,  13  Misc.  426,  68  St.  Rep.  404,  34 
Supp.  675. 

As  to  mandamus  against  New  York  Produce  Exchange,  see  In 
re  Hacbler  v.  N.  V.  Produce  Exchange,  149  N.  Y.  414,  reversing 
15  Misc.  42.  As  to  mandamus  to  a  benefit  society  upon  the  for- 
feiture of  insurance  therein  by  non-payment,  see  People  ex  rel. 
Leerburger  v.  Mutual  Reserve  Life  Association,  15  Misc.  333,  73 
St.  Rep.  315,  37  Supp.  617.  As  to  mandamus  to  compel  a 
water  company  to  furnish  water  to  one  cut  off  therefrom,  see 
Matter  of  McGrath,  56  Hun,  ^6,  29  St.  Rep.  704,  9  Supp.  168. 
As  to  whether  the  court  has  power  by  mandamus  to  compel 
arbitrators  to  perform  their  functions,  query.  People  ex  rel. 
Union  Ins.  Co.  v.  Nash,  iii  N.  Y.  310,  19  St.  Rep.  75,  16  Civ. 
Pro.  83. 

The  Supreme  Court  has  power  by  mandamus  to  compel  the 
officers  and  directors  of  a  corporation  to  permit  the  shareholders 
to  inspect  the  books  and  papers  of  the  corporation  other  than 
the  transfer  books.  Matter  of  Steinway,  31  App.  Div.  70,  52 
Sup]x  343,  86  St.  Rep.  343. 

Mandamus  will  not  lie  to  compel  a  telephone  company  to  place 
an  in.-,trumcnt  in  tlie  office  of  another  telephone  company  and 
establish  connections  therewith,  or  to  receive  and  transmit  mes- 
sages, but  the  remedy  is  by  action.  Matter  of  BahPwinsville 
Telephone  Co.,  24  Misc.  221,  53  Supp.  574,  f^y  St.  Rej).  574. 

A  peremptory  mandamus  cannot  be   granted   to   compel   the 


MANDAMUS.  1 77 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

commissioner  of  public  works  to  permit  the  opening  of  a  street 
by  a  street  railway  company,  in  order  to  make  an  authorized 
change  of  motive  power  to  electricity,  where  the  papers  show 
disputed  allegations  and  conclusions  as  to  the  necessity  of  the 
proposed  excavation,  the  uses  of  the  street  and  buildings,  the 
feasibility  of  using  the  tracks  of  an  existing  electric  railway  com- 
pany, damage  to  subterranean  structures,  and  as  to  the  possibility 
•of  obtaining  the  consents  of  property  owners.  Matter  of  /pd 
St.,  M.  6r  St.  N.  Ave.  R.  Co.  v.  Collis,  24  Misc.  321,  53  Supp.  669, 
?>7  St.  Rep.  669. 

Where  a  stockholder  in  mandamus  proceedings  to  enforce 
his  right  to  an  inspection  of  the  books  and  to  take  extracts 
therefrom,  succeeds  only  as  to  a  portion  of  the  relief  sought,  he 
is  not  entitled  to  recover  counsel  fees,  as  the  services  rendered 
in  attempting  to  enforce  the  relief  granted  cannot  be  separated 
from  those  rendered  in  respect  to  the  relief  which  was  denied. 
Clasonv.  Nassau  Ferry  Co.,  27  App.  Div.  621,  50  Supp.  160,  84  St. 
Rep.  160,  afifirming  20   Misc.  315,  45  Supp.  675,  79  St.  Rep.  675. 

A  mandamus  will  not  be  granted  to  compel  a  steam  surface 
railroad  to  cause  a  street  to  be  taken  across  its  tracks,  until  the 
board  of  railroad  commissioners  has  determined  the  manner  of 
crossing.  People  ex  rel.  City  of  Niagara  Falls  v.  N.  V.  C.  &  H. 
R.  R.  R.  Co.,  31  App.  Div.  334,  52  Supp.  234,  86  St.  Rep.  234. 

The  board  of  education  may  be  required  by  mandamus  to 
make  a  requisition  for  the  payment  of  the  bill  of  an  attorney 
designated  to  act  for  it  by  a  justice  of  the  Supreme  Court.  Peo. 
ex  rel.  Allison  V.  Bd.  of  Edueation,  26  App.  Div.  208,  49  Supp. 
915,  83  St.  Rep.  915. 

Sub.  9.  When  Granted  to  Control  Right  to  Public  Office. 

The  writ  was  awarded  to  restore  person  to  ofilice.  See  People 
V.  Board  of  Poliee,  35  Barb.  527,  which  was  reversed,  26  N.  Y. 
316.  The  question  is  discussed  in  People  w.  Board  of  Police,  () 
Abb.  257,  and  People  v.  Stevens,  5  Hill,  616.  In  the  last  case  the 
writ  was  refused  where  another  was  in  possession  of  the  ofifice 
claiming  a  right,  although  the  contrary  was  held  in  People  v. 
Steele,  2  Barb.  397,  \wh\\e:\n  People  v.  Board  of  Police,  supra,  it  was 
held  the  writ  should  not  issue  to  restore  one  against  whom  cause 
for  removal  exists.  Title  to  an  office  will  not  be  tried  on  man- 
damus.    People  V.  Lane,  55  N.  Y.  217  ;  Matter  of  Gardner,  68  id. 


178  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


467.  Nor  will  an  officer  be  restrained  from  action  by  mandamus. 
People  V.  Ferris,  76  N.  Y.  326,  See,  as  to  the  issuing  of  the  writ 
to  restore  officer,  People  v.  ScrugJiavi,  20  Barb.  302  ;  People  v. 
Mayor,  3  Johns.  Cas.  79  ;  People  v.  Dykeman,  7  How.  124  ;  People 
V.  Stephens,  5  Hill,  616,  note  ;  see,  also,  5  Wait's  Prac.  569.  The 
writ  will  issue  to  compel  selection  of  inspectors  of  election  by- 
police  board.  People  V.  Wheeler,  18  Hun,  540.  It  will  issue  to 
compel  an  election  to  fill  vacancy  in  office  of  alderman,  and  fix 
date  of  election.  People  v.  Common  Council,  yy  N.  Y.  503,  dis- 
tinguished, 97  N.  Y.  274.  But  there  is  no  power  to  go  behind 
election  returns  as  in  quo  warranto.  People  v.  Supervisors,  58  How. 
141.  The  writ  will  not  lie  to  compel  corporation  to  elect  a  new 
officer  in  place  of  one  not  qualified.  Matter  of  E met,  7  Hun,  333. 
Mandamus  will  lie  to  compel  an  officer  or  appointing  power  to 
compel  observance  of  statutory  preference  in  appointment  to 
public  office,  given  to  honorably  discharged  soldiers  and  sailors  of 
the  late  war.  Matter  of  IVortman,  22  Abb.  N.  C.  137,  2  Supp.  324. 
The  statute  is  sufficiently  comprehensive  to  embrace  ordinary 
laborers,  and  does  not  limit  employment  of  veterans  to  business 
positions,  and  mandamus  lies  in  favor  of  a  laborer  to  the  commis- 
sioner of  public  works.  Sullivan  v.  Gilroy,  55  Hun,  285,  28  St. 
Rep.  566,  8  Supp.  401.  Where,  however,  an  appointment  has 
already  been  made,  mandamus  is  not  a  proper  remedy  in  favor  of 
a  veteran  ;  held,  also,  that  the  incumbent  should  be  made  a  party. 
People  ex  rel.  Ballon  v.  Wendell,  57  Hun,  362,  32  St.  Rep.  129,  10 
Supp.  587.  But  the  writ  will  not  lie  to  compel  the  appointment  of 
a  veteran  where  the  appointing  board  has  a  discretion  in  judging 
of  the  qualification  for  office.  People  ex  rel.  Lockwood  v.  Sara- 
toga Spa,  54  Hun,  16,  26  St.  Rep.  54,  7  Supp.  125. 

Mandamus  will  not  lie  against  the  incumbent  of  a  public  office 
occupying  under  color  of  legal  title.  The  writ  is  not  available 
for  the  admission  of  an  adverse  claimant,  and  may  not  be  em- 
ployed for  trying  the  title  to  office.  Matter  of  Torney,  7  Misc. 
260,  57  St.  Rep.  465,  23  Civ.  Pro.  333,  27  Supp.  913  ;  S.  C.  on 
appeal,  11  Misc.  291,  65  St.  Rep.  452,  32  Supp.  277. 

The  writ  will  not  lie  to  compel  reinstatement  to  office  on  the 
ground  that  the  relator  is  an  honorably  discharged  Union  soldier 
when  he  has  waited  eight  months  before  making  application  for 
the  writ,  being  guilty  of  laches.  People  ex  rel.  Miller  v.  Justices 
of  Sessions,  78  Hun,  334,60  St.  Rep.  720,  29  Supp.  157.    A  delay 


MANDAMUS.  179 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


of  two  years  and  nine  months  is  such  laches  as  will  defeat  the 
writ.  Matter  ofGaffncy,^  Hun,  503,  66  St.  Rep.  153,  32  Supp. 
873.  So  also  is  a  delay  of  four  months  after  discharge  from 
office.  People  ex  rel.  Young  v.  Collis,  6  App.  Div.  467,  39  Supp. 
698.  Matter  of  Vanderhof,  15  Misc.  434,  72  St.  Rep.  354,  36 
Supp.  833. 

When  veteran  volunteer  firemen  hold  positions  by  appoint- 
ment in  a  city  for  an  indefinite  time,  they  may  compel  reinstate- 
ment by  mandamus,  if  removed  from  their  positions  without 
cause.  The  rule  that  the  courts  will  not,  at  the  instance  of  a 
person  out  of  possession  of  of^fice,  try  the  title  to  of^ce  by  man- 
damus, but  will  leave  the  party  to  the  proceeding  of  quo  war- 
ranto, has  reference  to  public  ofifices  created  by  law,  and  is  not 
applicable  to  clerks  or  employes  unlawfully  removed  from  their 
position  by  superiors.  People  ex  rel.  Drake  v.  Sutton,  88  Hun, 
173,  68  St.  Rep.  494,  34  Supp.  487.  Yet  the  rule  is  well  settled 
in  this  State,  that  mandamus  will  be  refused  to  aid  the  admission 
of  a  claimant  to  an  ofifice  already  filled  under  color  of  law  and 
when  the  title  to  it  presents  a  disputable  question.  People  ex 
rel.  Wren  v.  Goetting,  133  N.  Y.  569;  People  ex  rel.  Lewis  m. 
Brush,  146  N.  Y.  60,  65  St.  Rep.  753,  afifirming  64  St.  Rep.  139. 
To  the  same  effect,  see  People  ex  rel.  Rumph  v.  Supervisors,  89 
Hun,  38,  69  St.  Rep.  386,  34  Supp.  1128;  People  ex  rel.  Wag- 
ner V.  Trustees,  17  Misc.  652  ;  Matter  of  Hardy,  17  Misc.  667. 

The  writ  will  not  lie  to  a  board  of  education  to  compel  the 
reinstatement  of  relator  to  the  position  of  teacher  in  a  public 
school,  when  the  right  thereto  is  not  clear  and  another  appointee 
occupies  the  place,  and  where  the  dismissal  was  the  result  of  a 
trial  which  may  not  be  reviewed  upon  mandamus.  Jordan  v. 
Board  of  Education,  14  Misc.  119,  35   Supp.  247. 

Mandamus  will  not  lie  to  compel  reinstatement  to  an  office 
where  the  head  of  the  department  has  power  by  statute  to  dis- 
charge employes  without  assigning  reasons  therefor  thirty  days 
after  appointment.  Sheridan  v.  fFz7/w,  6  App.  Div.  132,  39  Supp. 
884.  Mandamus  will  not  lie  to  compel  a  public  officer  to  notify 
the  civil  service  commission  of  certain  vacancies  in  his  department 
and  to  request  a  certification  of  names  of  those  graded  as  avail- 
able, in  a  case  where  the  public  officer  has  authority  to  determine 
the  number  of  clerks  and  subordinates  which  he  requires  in  his 
department.     People  ex  rel.  Tregaskis  v.  Palmer,  9  App.  Div.  252. 


l8o  MANDAMUS. 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


Mandamus  to  compel  the  reinstatement  of  a  veteran  to  a 
public  office  will  be  refused  where  the  return  of  the  commissioner 
of  public  works  shows  that  the  relator  was  discharged  solely  for 
neo-lio-ence,  incompetence,  and  conduct  not  consistent  with  his 
position.  Such  return  is  conclusive.  People  ex  rel.  Connor  v, 
Brookficld,  2  App.  Div.  299,  73  St.  Rep,  392,  37  Supp.  718. 

Mandamus  will  lie  to  a  civil  service  commission  to  compel  the 
reinstatement  of  a  relator's  name  on  the  list  of  eligibles  when  it 
has  been  removed  therefrom  solely  on  account  of  his  advanced 
age  and  feeble  physical  condition.  People  ex  rel.  Van  Petten  v. 
Cobb,  13  App.  Div.  56. 

The  general  rule  is  that  mandamus  will  not  lie  to  determine 
the  title  to  a  public  office.  The  title  of  one  claiming  a  public 
office  filled  by  another  holding  under  color  of  right  will  not  be 
determined  in  a  mandamus  proceeding  where  the  question  of 
title  turns  upon  the  construction  of  statutory  provisions  which 
are  not  entirely  clear  and  unambiguous  ;  it  seems  that  the  appro- 
priate remedy  in  such  case  is  by  information  in  the  nature  of  a 
quo  zvarranto.     People  ex  rel.  Wren  v.  Goetting,  133  N.  Y.  569. 

Mandamus  will  not  be  granted  on  the  application  of  a  claim- 
ant to  a  public  office  for  the  purpose  of  determining  the  validity 
of  his  claim  where  there  is  a  serious  question  in  regard  thereto, 
and  another  person  is  exercising  the  functions  of  the  office. 
People  ex  rel.  Lezvis  v.  Brush,  146  N.  Y.  60,  65  St.  Rep.  753; 
People  ex  rel.  Rumph  v.  Supervisors,  89  Hun,  38,  69  St.  Rep.  386, 
34  Supp.  1 1 28;  Peo.  ex  rel.  Steingoetter  v.  Bel.  of  Canvassers  of 
Erie,  18  St.  Rep.  799,  2  Supp.  561  ;  People  ex  rel.  Wilson  v.  Vil- 
lage of  Mt.  Vernon,  59  Hun,  204,  36  St.  Rep.  318,  13  Supp.  447, 
affirmed,  128  N.  Y.  657,  The  rule  that  mandamus  will  not  issue 
to  determine  title  to  office  holds  even  where  it  is  a  question  as  to 
title  to  office  in  an  incorporated  society.  People  ex  rel.  Nieholl 
v.  New  York  Infant  Asylum,  122  N.  Y.  190,  33  St.  Rep.  296. 

A  mandamus  to  appoint  a  person  to  an  office  should  not  be 
granted  unless  coupled  with  an  application  to  remove  the  pres- 
ent incumbent.  People  ex  rel.  Lockivood  v .  Trustees  of  Saratoga 
Springs,  7  Supp.  125. 

It  is  not  the  proper  office  of  mandamus  to  restrain  a  party 
claiming  to  be  a  public  officer  from  exercising  the  duties  of  the 
office  or  to  enjoin  one  claiming  to  have  been  elected  or  appointed 
to  such  office    from    qualifying;  and  apart  from  other  considera- 


MANDAMUS.  l8l 


Art.   I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

tions,  the  pendency  of  an  action  brought  by  the  attorney-general 
in  the  nature  of  a  qiw  warranto  to  determine  the  validity  of  a 
public  office  requires  the  denial  of  the  petition  for  mandamus. 
People  ex  rel.  Requa  v.  Neubratid,  32  App.  Div.  49,  52  Supp.  280, 
86  St.  Rep.  280. 

The  fact  that  the  relator,  a  veteran,  claiming  to  be  illegally  dis- 
charged, asked  to  be  reinstated  to  the  position  of  elevatorman, 
when  he  was  only  entitled  to  be  restored  to  the  position  of 
laborer,  is  not  a  ground  for  denying  him  the  latter  relief.  People 
ex  rel.  Broderick  v.  Morton,  24  App.  Div.  565,  49  Supp.  760. 

Where  the  relator,  a  veteran,  claims  to  be  illegally  discharged 
by  the  trustees  and  superintendent  of  public  buildings,  the  fact 
that  the  Governor  of  the  State,  a  member  of  such  board,  is 
named  in  the  writ  as  an  individual,  does  not  prevent  the  pro- 
ceeding, as  the  writ  does  not  require  him  to  do  any  act  in  his 
character  as  Governor,  and  it  is  not  an  attempt  to  interfere  with 
the  Executive  Department  of  the  State;  nor  will  the  court  con- 
sider the  question  whether  the  writ  will  be  enforced,  as  it  is  not 
presumed  that  State  officials  will  refuse  to  obey  the  law.  People 
ex  rel.  Broderick  v.  Morton,  24  App.  Div.  566,  49  Supp.  760, 
reversed,  156  N.  Y.  136. 

A  mandamus  will  not  lie  against  the  board  of  managers  of  a 
State  hospital  to  compel  the  reinstatement  of  an  employe  where 
the  superintendent  of  the  hospital  is  alone  empowered  to  appoint 
and  discharge  employes.  Matter  of  Porter  v.  Hozvland,  24  Misc. 
434;  sub  nom.  Porter  v.  Howland,  53  Supp.  683,  87  St.  Rep.  683. 

A  veteran  who  was  appointed  as  an  assessor  under  the  Consol- 
idation Act  was  entitled  to  serve  during  good  behavior,  and  is 
entitled,  under  §  127  of  the  New  York  charter,  to  be  retained 
as  a  member  of  the  new  board  of  assessors,  and  a  failure  to  so 
retain  him  may  be  righted  by  mandamus.  Matter  of  Jacobus, 
24  Misc.  329;  sub  nom.  Jacobus  v.  Van  Wyck,  53  Supp.  71,  87 
St.  Rep.  71. 

A  proceeding  by  mandamus  against  the  trustees  of  a  public 
building  to  reinstate  a  veteran  who  has  been  discharged  cannot, 
where  the  persons  proceeded  against  go  out  of  office  pending  the 
proceedings,  be  continued  against  their  successors  without  notice 
or  substitution  of  them.  Peo.  ex  rel.  Broderickv.  Morton,  156  N.  Y. 
136,  50  N.  E.  Rep.  791,  reversing  24  App.  Div.  563,  49  Supp.  760, 
83  St.  Rep.  760. 


1 82  MANDAMUS. 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

Where  appointments  have  been  duly  made  from  an  eUgible 
list  furnished  by  the  civil  service  commissioners,  the  remedy  of  a 
person  whose  name  was  omitted  from  the  list  by  the  mistake  of 
the  commissioners  is  not  by  mandamus  to  compel  a  cancellation 
of  the  appointments  made  and  his  own  appointment  to  the 
place,  but  by  a  proceeding  to  test  the  title  of  the  appointees. 
Peo.  ex  rcl.  Mullen  v.  Sheffield,  24  App.  Div.  214,  48  Supp.  796,  82 
St.  Rep.  796.  A  delay  of  three  years  upon  the  part  of  a  veteran  in 
applying  for  a  mandamus  to  compel  his  restoration  to  the  posi- 
tion from  which  he  has  been  removed  constitutes  such  laches  as 
precludes  the  granting  of  the  application.  Peo.  ex  rel.  Throck- 
morton V.  McCartney,  28  App.  Div.  138,  50  Supp.  919,  84  St.  Rep. 
919.  Mandamus  will  not  lie  to  compel  reinstatement  of  an  officer 
where  another  has  been  appointed  and  is  in  possession  of  the 
office  under  color  of  right,  but  the  remedy  is  by  quo  tvarranto. 
Peo.  ex  rel.  Brymer  v.  Scannel,  22  Misc.  298,  49  Supp.  1096,  83 
St.  Rep.  1096. 

Sub.  10.  When  Granted  in  Matters  Relating  to  Taxation. 

Mandamus  will  lie  to  a  State  comptroller  to  compel  him  to  hear 
and  determine  an  application  made  by  a  purchaser  of  real  estate, 
at  a  city  tax  sale,  to  cancel  the  sale  and  refund  the  purchase 
money,  where  such  purchaser  presents  proof  to  show  that  the 
tax  was  invalid.  Peo.  ex  rel.  Ostrander  v.  CJiapin,  105  N.  Y.  309. 
But  the  writ  will  not  lie  to  the  comptroller  to  make  any  par- 
ticular decision  or  to  set  aside  a  decision  already  made  as  to  who 
is  entitled  to  purchase  money  paid  upon  the  invalid  sale  of  land 
for  taxes;  and  upon  such  proceedings  the  sufificiency  of  the  evi- 
dence upon  which  the  decision  was  based  may  not  be  reviewed 
Peo.  ex  rel.  Millard  v.  Chapin,  104  N.  Y.  96.  Where  a  board  of 
assessors  has  acted  and  rendered  judgment  in  assessment  pro- 
ceedings, mandamus  is  not  proper  remedy  to  review  the  judg- 
ment ;  such  review  should  be  had  by  certiorari.  Peo.  ex  rel. 
Osborne  v.  Gilonn,  24  Abb.  N.  C.  125,  30  St.  Rep.  515,  9  Supp. 
563,    18  Civ.  Pro.  1 12. 

Mandamus  will  lie  to  compel  the  comptroller  of  a  city  to  issue 
and  negotiate  bonds  in  order  to  pay  the  State  treasurer  taxes 
which  are  owing  from  said  city.  Matter  of  Attorney-General  v. 
Myers,  58  Hun,  218,  34  St.  Rep.  284,  12  Supp.  754.  The  writ  will 
lie  to  a  county  treasurer  to  compel  him  to  invest  mono}-  collected 


MANDAMUS.  1 83 


Art.   I.     Nature  of  the  Writ ;  When  and  Against  Whom  Allowed. 

as  taxes  as  provided  by  statute.  Spaulding  v.  Arnold,  125  N.  Y. 
194,  34  St.  Rep.  980.  Mandamus  will  not  lie  to  compel  a  col- 
lector of  taxes  to  correct  his  books  so  as  to  conform  to  the  appor- 
tionment in  a  case  where  there  is  fraud  on  the  part  of  the  relator. 
Peo.  ex  rel.  Wood  v.  Assessors,   137  N.  Y.  201,   50  St.  Rep.  404. 

The  writ  will  not  lie  to  a  board  of  assessors  to  require  them  to 
correct  the  assessment  rolls  where  they  have  no  authority  to  do 
so.  Matter  of  Popoff,  10  Misc.  272,  63  St,  Rep.  438,  31  Supp.  2.  . 
The  writ  lies  to  assessors  to  compel  them  to  strike  out  the 
assessment  and  taxes,  and  to  restrain  the  collection  thereof, 
where  the  property  was  included  in  the  assessment  by  mistake. 
Peo.  ex  rel.  Nostrandv.  Wilson,  119  N.  Y.  515.  See  in  connec- 
tion with  mandamus  relating  to  taxes,  Peo.  ex  rel.  Flower  v. 
Bleckwenn,  55  Hun,  169. 

Mandamus  is  a  proper  remedy  to  compel  the  registrar  of 
arrears  to  receive  unpaid  taxes,  and  cancel  a  sale  therefor,  and  a 
purchaser  who  has  not  received  a  conveyance  is  not  a  necessary 
party.  Peo.  ex  rel.  Cooper  v .  Registrar  of  Arrears,  114  N.  Y.  19^ 
22  St.  Rep.  158. 

Sub.    II.   When  Granted   to  Compel  Action  by  Inferior  Tribunals. 

The  writ  may  be  granted  to  compel  entry  of  judgment  where 
inferior  court  cannot  grant  new  trial.  Home  v.  Barney,  19 
Johns.  247  ;  Haight  v.  Turner,  2  id.  370 ;  People  v.  Justices  of 
Chenango,  i  Johns.  Cas.  180.  And  to  compel  settlement  of  case 
by  referee.  People  v.  Justices,  20  Wend.  663 ;  People  v.  Baker, 
14  Abb.  19;  Sikcs  v.  Ransom,  6  Johns,  279;  Delavan  v.  Board- 
vian,  5  Wend.  132;  People  v.  Judges  of  Westchester,  2  Johns. 
Cas.  117.  But  not  in  a  particular  way.  People  v.  Baker,  14  Abb. 
19.  Justice  of  Marine  Court  to  perform  duty  not  ofificial. 
People  V.  Shea,  7  Hun,  303.  An  alternative  mandamus  is  proper 
to  raise  the  question  as  to  proper  entry  of  order  on  decision  of 
judge.  People  v.  Supervisors,  9  Abb.  408.  To  compel  police 
commissioners  to  allow  a  policeman  on  trial  to  have  counsel. 
Matter  of  Ryan,  i  Law  Bull.  81.  To  compel  county  judge  to 
file  decision  when  made.  People  v.  Dodge,  5  How.  47.  And  to 
place  on  calendar  an  appeal  prematurely  dismissed.  People  v. 
County  Judge,  13  How.  277;  People  v.  County  Judge,  id.  398; 
People  V.  Cortelyou,  36  Barb.  164.  To  compel  issue  of  warrant 
in    summary  proceedings   on  proper  proof.     People  v.    Willis,  5 


1 84  MANDAMUS. 


Art.    I.     Nature  of  the  Writ  ;  When  and  Against  Whom  Allowed. 

Abb.  205.  To  compel  a  subordinate  court  to  give  judgment,  so 
writ  of  error  can  be  brought.  People  v.  Stone,  9  Wend.  182  ;  Ex 
parte  Bostwick,  i  Cow.  143.  To  compel  a  court  to  exercise 
statutory  jurisdiction.  Matter  of  Hook,  55  Barb.  257.  To  compel 
an  inferior  court  to  issue  execution.  Cook  v.  Kirkland,  2  How. 
109 ;  People  v.  Gale,  22  Barb.  502.  The  writ  has  been  issued  to 
inferior  courts  to  compel  them  to  set  aside  their  orders.  People 
V.Judges,  I  How.  109;  People  v.  Judges,  id.  in;  Matter  of 
Application  for  Mandamus,  id.  200;  People  \.  Common  Pleas,  18 
Wend.  234.  The  writ  will  not  issue  to  compel  a  judge  to  change 
his  decision  on  settling  a  case.  Tweed  v.  Davis,  i  Hun,  252. 
Nor  to  correct  error  in  dismissing  appeal.  Ex  parte  Ostrander, 
I  Denio,  679.  Nor  any  decision  involving  discretion.  People  v. 
Judges,  3  Cow.  39 ;  People  v.  A^.  Y.  Sup.  Ct.,  19  Wend.  701  ; 
People  V.  Marine  Court,  36  Barb.  341  ;  People  v.  Judges,  18  Wend. 
79  ;  People  v.  Tracy,  i  How.  186;  People  v.  Baker,  35  Barb.  105  ; 
People  V.  Callahan,  7  Daly,  434.  As  in  case  of  opening  surro- 
gate's decree.  People  v.  Lott,  42  Hun,  408.  Nor  to  control  the 
practice  in  inferior  courts.  Ex  parte  Brown,  5  Cow.  31  ;  People 
V.  Common  Pleas,  2  How.  189  ;  Ex  parte  Chamberlain,  4  Cow 
49.  Nor  to  compel  a  court  to  allow  an  action  to  be  removed  to 
the  United  States  court.  People  v.  Judges,  2  Denio,  197.  Nor 
to  compel  obedience  to  the  order  of  another  court.  Matter  of 
PoJid,  II  How.  563.  Nor  to  compel  a  court  to  vacate  a  rule  in 
arrest  of  judgment.  Ex  parte  Bostwick,  i  Cow.  143.  Nor  to 
compel  a  court  to  reverse  a  manifestly  erroneous  decision,  as  it  is 
judicial  and  involves  discretion.  People  v.  Judges,  21  Wend.  20; 
Ex  parte  Koon,  i  Denio,  644;  Elkins  v.  Ahearn,  2  id.  291  ;  Ex 
parte  Jacobs,  i  id.  646  ;  Ex  parte  Baily,  2  Cow.  479 ;  People  v. 
Coinmon  Pleas,  19  Wend.  113;  Ex  parte  Barrett,  2  Cow.  458  ; 
Ex  parte  Bacon,  6  id.  392  ;  Ex  parte  Coster,  7  id.  523  ;  People  v. 
Judges,  20  Wend.  658  ;  Gilbert  v.  Judges,  3  Cow.  59.  Writ  was 
granted  to  compel  superintendent  of  insurance  department  to 
pay  over  moneys.  Matter  of  N.  A.  Insurance  Co.,  8  N.  Y.  152. 
Nor  to  a  justice  of  a  court  where  his  time  is  occupied  to  compel 
him  to  entertain  a  particular  case.  People  v.  McAdam,  3  Civ, 
Pro.  396.  In  some  of  the  above  cases  and  others,  the  decision  is 
also  placed  on  the  broad  ground  that  the  party  has  another 
adequate  remedy. 

"  The  judgment  of  an  officer,  court,  or  body  charged  with  judi- 


MANDAMUS.  185 


Art.    I.     Nattire  of  the  Writ  ;  When  and  Against  Whom  Allowed. 


cial  functions  cannot  be  coerced  by  mandamus.  The  most  that 
can  be  accomplished  by  that  writ  is  to  compel  such  officer,  court, 
or  body  to  decide,  leaving  the  decision  to  the  free  exercise  of  the 
judgment  and  conscience  of  the  tribunal  charged  with  the  duty 
of  deciding,  and  reserving  to  the  party  affected  by  such  a  decision 
the  right  to  review  the  same  by  certiorari  or  appeal."  Mayhem, 
P.  J.,  in  Peo.  ex  rel.  Woodward  v.  Rosendalc,  76  Hun,  107. 

Inferior  tribunals  or  a  ministerial  officer  cannot  be  compelled 
by  mandamus  to  decide  a  question  in  a  particular  manner,  when 
the  duties  which  are  required  to  be  performed  are  in  their  nature 
judicial,  and  all  acts  which  depend  upon  the  decision  of  a  ques- 
tion of  law  or  the  ascertainment  and  determination  of  a  fact  are 
considered  judicial.  Peo.  ex  rel.  Kings  Co.  Gas  Co.  v.  Schieren,  89 
Hun,  223,  69  St.  Rep.  243,  35  Supp.  64. 

Where  a  judicial  body  errs  in  its  decision  the  remedy  to  review 
and  to  correct  the  same  is  by  certiorari,  not  by  mandamus.  Peo, 
ex  rel.  Bevins  v.  Sufvrs,  82  Hun,  298,  63  St.  Rep.  577,  31  Supp. 
248. 

Mandamus  requiring  a  public  officer  to  discharge  an  official 
duty,  such  as  to  abate  a  nuisance  in  a  public  street,  will  not  be 
denied  because  there  are  thousands  of  similar  nuisances  which 
would  require  an  army  of  employes  and  put  the  city  to  a  heavy 
expense  to  remove  them ;  nor  because  the  relator  has  a  remedy 
against  the  individual  maintaining  the  nuisance,  unless  it  appears 
that  the  respondent  by  reason  of  the  multitude  of  such  applica- 
tions actually  made  is  without  means  or  money  to  enforce  the 
direction  of  the  court.     Peo.  ex  rel.  Mullen  v.  Newton,  20  Abb. 

N.  C.  387. 

Mandamus  will  lie  to  an  inferior  court  to  compel  the  judges  to 
pass  sentence  upon  a  defendant  who  has  pleaded  guilty,  where 
they  have  suspended  sentence  after  such  a  plea.  People  ex  rel. 
Benton  v.  Ct.  of  Sessions  of  Monroe  Co.,  46  St.  Rep.  255,  19  Supp. 
508,  8  Crim.  R.  355. 

It  will  lie  to  a  justice  of  the  district  court  of  New  York  to  make 
and  file  order  in  summary  proceedings,  and  to  issue  a  warrant  for 
the  possession  of  premises,  in  a  case  where  he  adjourned  the  pro- 
ceedings without  authority.  People  ex  rel.  Allen  v.  Murray,  2 
Misc.  152,  50  St.  Rep.  535,  23  Supp.  160,  23  Civ.  Pro.  71. 

It  will  lie  to  a  police  justice  to  require  him  to  allow  the  com- 
plainant to  be  represented  by  counsel  and  to  allow  said  counsel 


MANDAMUS. 


Art.  2.     By  What  Court  Writ  May  be  Granted. 


to  act  as  prosecuting  attorney  in  the  absence  of  the  district  attor- 
ney on  the  preHminary  hearing.  People  ex  re/.  Hoives  v.  Grady,  66 
Hun,  465,  50  St.  Rep.  128,  21  Supp.  381,  afihrmed,  144  N.  Y.  689. 

But  it  will  not  lie  to  compel  an  inferior  tribunal  to  decide  an 
action  or  proceeding  pending  before  it  where  such  tribunal  has 
already  decided  that  it  has  no  jurisdiction  to  entertain  the  same. 
Matter  of  McBride,  72  Hun,  394,  55  St.  Rep.  487,  25   Supp.  431. 

Nor  will  it  lie  to  the  justice  of  an  inferior  court  to  compel  him 
to  reinstate  the  relator  to  the  position  of  court  attendant  as 
against  an  incumbent  occupying  under  cover  of  a  legal  title,  for 
quo  ivarranto  is  the  only  proceeding  for  trying  and  judging  the 
title  to  office.  Matter  of  Torney,  7  Misc.  260,  57  St.  Rep.  465,27 
Supp.  913,  23  Civ.  Pro.  333. 

Nor  will  it  lie  to  the  justice  of  an  inferior  court  to  reinstate  the 
relator  to  the  office  of  court  attendant  where  he  is  guilty  of 
laches.  People  ex  rel.  Miller  v.  Justices  of  Sessions,  78  Hun,  334, 
60  St.  Rep.  720,  29  Supp.  157. 

Nor  will  it  lie  to  the  clerk  of  an  inferior  court  to  compel  him 
to  deliver  to  the  relator  papers  filed  with  said  clerk,  where  it  has 
been  decided  by  the  judges  of  said  court  they  should  be  filed 
with  their  clerk,  and  the  decision  has  been  acted  upon  for  a  num- 
ber of  years.  People  ex  rel.  Gottchius  v.  McGoldrieh,  6"]  St.  Rep. 
289,  24  Civ.  Pro.  292,  33  Supp.  441. 

Nor  will  it  lie  to  a  police  justice  to  require  him  to  act  where 
his  jurisdiction  is  not  exclusive.  People  ex  rel.  Fellows  v.  Hogan, 
55  Hun,  391,  123  N.  Y.  219. 

ARTICLE    n. 

By  What  Court  Writ  may  be  Granted.  §§  2068,  2069. 
§  2068.     [Am'd,  1895.]     When  writ  granted  at  special  term. 

Except  where  special  provision  therefor  is  otherwise  made  in  this  article,  a  writ  of 
mandamus  can  be  granted  only  at  a  Special  Term  of  the  Supreme  Court,  held  within 
the  judicial  district,  embracing  the  county,  wherein  an  issue  of  fact,  joined  upon  an 
alternative  writ  of  mandamus,  is  triable,  as  prescribed  in  this  article. 

?■  2069.  [Am'd,  1895.]  Id.;  at  term  of  the  appellate  division  of 
the  Supreme  Court. 

A  writ  of  mandamus  may  be  granted,  at  a  term  of  the  appellate  division  of  the 
Supreme  Court  only,  directed  generally  to  any  judge  holding,  or  to  hold,  a  Special 
Term  of  the  same  court,  or  directed  to  one  or  more  judges  of  the  same  court  named 
therein,  in  any  case  where  such   a  writ   m:iy   be   issued   out   of   the   .Supreme   Court, 


MANDAMUS.  1 8/ 


Art.   2.     By  What  Court  Writ  may  be  Granted. 


directed  to  any  other  court,  or  to  a  judge  thereof.  Such  a  writ  can  be  granted  only  at 
a  term  of  the  appellate  division  of  the  judicial  department  embracing  the  county 
wherein  the  action  is  triable,  or  the  special  proceeding  is  brought,  in  the  course  of 
which  the  matter  sought  to  be  enforced  by  the  mandamus  originated,  unless  that  term 
is  not  in  session  ;  in  which  case  it  may  be  granted  at  a  term  of  the  appellate  division 
of  an  adjoining  judicial  department. 

The  evident  intent  of  §  2069  is  to  authorize  the  General  Term 
to  issue  the  writ  where  the  action  of  a  Special  Term  is  to  be 
affected,  to  prevent  the  anomaly  of  one  Special  Term  granting 
the  writ  against  another  Special  Term,  or  against  one  or  more 
judges  of  the  same  or  another  court.  It  is  probable  that  the 
"  may  "  of  this  section  in  accordance  with  well-settled  principles 
would  be  construed  as  "  must  "  in  case  the  aid  of  one  Special 
Term  was  invoked  against  another  and  the  matter  sent  to  the 
General  Term  for  action,  not,  however,  as  in  any  way  binding  the 
discretion  of  the  General  Term  as  to  the  granting  of  the  writ. 

The  provisions  of  §  2068  as  to  application  to  a  Special  Term  in 
the  district  embracing  the  county  where  the  venue  would  be  laid 
on  an  issue  of  fact  on  an  alternative  mandamus  is  a  new  one  and 
establishes  a  different  rule  from  that  authorizing  motions  to  be 
made  in  the  county  adjoining  the  district  of  the  venue.  It  evi- 
dently overrules  People  ex  rel.  v.  Supervisors,  2  Abb.  (N.  S.)  78, 
and  Mason  v.  Miller,  7  Hun,  23,  so  far  as  they  authorize  the  appli- 
cation out  of  the  district.  The  superior  courts  have  power  to 
grant  mandamus.     People  ex  rel.  v.  Green,  58  N.  Y.  295. 

The  power  to  issue  the  writ  of  mandamus  was  at  common  law 
lodged  exclusively  in  the  Court  of  King's  Bench,  because  of  the 
general  superintendence  it  exercised  over  all  inferior  jurisdic- 
tions, and,  unless  conferred  by  statute,  could  be  exercised  by  no 
other  court  in  the  realm.  It  was  one  of  the  prerogative  writs, 
and,  if  any  trace  is  to  be  found  of  an  attempt  by  any  other  court 
to  exercise  the  jurisdiction  in  the  absence  of  a  special  statute  con- 
ferring the  authority,  it  was  in  the  nature  of  a  usurpation. 
Audley  v.  May,  Poph.  176,  2  Blk,  Com.  1 10,  Moses  on  Mandamus, 
16;  People  ex  rel.  Ryan  v.  Green,  58  N.  Y.  296.  The  jurisdiction 
resided  in  the  court  and  not  in  the  individual  judges,  and  the 
writ  was  issued  in  term  and  not  in  vacation.  People  ex  rel.  Loxver 
V.  Donovan,  29  Abb.  (N.  C.)  175. 

Mandamus  is  a  high  prerogative  remedy,  known  here  as  a 
State  writ.  The  power  to  issue  it  in  England  resided  exclusively 
in  the  Court  of  King's  Bench  until  1854,  when  it  was  vested  in  all 


1 88  MANDAMUS. 


Art.   2.      By  What  Court  Writ  may  be  Granted. 


the  superior  courts  of  the  kingdom.  At  the  first  estabhshment 
of  the  judicial  system  in  this  State,  this  pecuHar  jurisdiction  of 
the  King's  Bench  was  bestowed  exclusively  upon  the  Supreme 
Court,  and  in  1873  it  was  (following  the  precedent  in  England) 
conferred  upon  the  "  superior  city  courts  of  record."  This  term 
is  used  to  distinguish  between  superior  and  inferior  courts  of 
record,  that  powers  peculiar  to  the  former  may  not  be  assumed 
by  the  latter,  as  of  course.  People  ex  rel.  McMahon  v.  The  Board 
of  Excise,  3  St.  Rep.  253. 

Section  2069  contains  the  only  provision  which  permits  any 
tribunal,  other  than  the  Special  Term  of  the  Supreme  Court,  to 
grant  the  writ  of  mandamus.  This  section  together  with  §  2068 
are  the  only  statutes  conferring  jurisdiction  to  issue  the  writ,  and 
the  jurisdiction  thus  conferred  is  exclusive.  People  ex  rel.  Lower 
V.  Donovan,  135  N.  Y.  81,  23  Civ.  Pro.  9,  reversing  S.  C.  63  Hun, 
512,  45  St.  Rep.  141,  18  Supp.  501. 

An  alternative  writ  of  mandamus,  except  when  special  pro- 
vision is  otherwise  made,  can  only  be  granted  at  Special  Term, 
but  it  may  be  granted  with  or  without  notice,  as  the  court  thinks 
proper ;  where  it  was  granted  without  notice  it  is  properly 
granted  at  an  adjourned  term.  People  ex  rel.  Village  of  Fulton  v. 
Supervisors  of  Oswego,  50  Hun,  105. 

It  seems  that  where  a  peremptory  writ  is  applied  for,  which  by 
its  terms  acts  as  a  restraint  to  some  direct  action  on  the  part  of 
the  board  of  canvassers,  it  is  in  the  nature  of  an  injunction, 
and  the  limitation  imposed  by  §  605,  Code  Civil  Procedure,  pro- 
viding that  where  injunction  is  issued  to  restrain  State  officers  it 
should  not  be  granted  except  by  the  Supreme  Court  at  a  General 
Term,  applies  also  to  such  a  writ  of  mandamus,  and  therefore  it 
cannot  be  issued  by  a  Special  Term.  People  ex  rel.  Derby  v.  Rice, 
129  N.  Y.  464,  41  St.  Rep.  938. 

Mandamus  granted  at  a  Special  Term  can  be  granted  only  at  a 
term  of  the  court.  Peo.  ex  rel.  Gay  lord  v.  Supvrs.  Schoharie  County, 
40  St.  Rep.  66,  15  Supp.  795.  But  an  order  directing  issue  of  an 
alternative  writ  of  mandamus  may  be  granted  at  a  properly  ad- 
journed Special  Term,  whenever  the  court  so  granting  it  holds 
that  notice  is  not  necessary  ;  the  court  being  empowered  by  § 
2076  to  grant  the  alternative  writ  either  with  or  without  notice, 
as  it  thinks  proper.  Peo.  ex  rel.  Fulton  v.  Supvrs.  Oswego,  50 
Hun,  107,  19  St.  Rep.    26,  15  Civ.  Pro.  383,  3   Supp.   752.     This 


MANDAMUS.  1 89 


Art.   2.     By  What  Court  Writ  may  be  Granted. 


power  of  a  properly  adjourned  Special  Term  rests  upon  the  fact 
that  ex  parte  motions  can  of  course  be  heard  at  terms  adjourned 
to  a  judge's  chambers,  but  as  contested  motions,  requiring  notice, 
cannot  so  be  heard,  at  an  adjourned  term,  it  would  seem  to  follow 
that,  wherever  notice  is  held  to  be  necessary,  the  alternative  writ 
cannot  be  granted  at  an  adjourned  term. 

This  section  provides  that,  except  where  special  provision  is 
otherwise  made,  a  writ  of  mandamus  can  be  granted  only  at  a 
Special  Term  of  the  Supreme  Court  held  within  the  judicial  dis- 
trict embracing  the  county  wherein  the  issue  of  fact  joined  upon 
the  alternative  writ  is  triable  ;  but  §  2084  provides  that  such  issue 
is  triable  in  the  county  wherein  it  is  alleged  in  the  writ,  that 
the  material  facts  took  place,  unless  the  court  directs  it  to  be 
tried  elsewhere.  Pco.  v.  Myers,  50  Hun,  479,  20  St.  Rep.  270,  3 
Supp.  366,  affirmed  without  opinion,  112N.  Y.  676.  It  there- 
fore follows,  that  unless  the  court  especially  directs  the  issue  to 
be  tried  elsewhere,  the  application  for  the  writ  must  be  made  in 
the  district  embracing  the  county  where  the  material  facts  took 
place.     People  v.  Myers,  50  Hun,  482, 

It  seems  that  the  district  in  which  the  application  for  manda- 
mus should  be  made  is  dependent  not  upon  the  location  of  the 
office  of  the  public  official  against  whom  the  writ  is  issued,  but 
rather  upon  the  place  where  the  material  facts  occurred  which  it 
might  be  necessary  to  determine  upon  the  alternative  writ.  In 
other  words,  the  proper  place  in  which  to  make  application  is  to 
be  resolved  by  determining  in  what  county  or  place  the  issue  of 
facts  joined  upon  an  alternative  writ  of  mandamus,  if  granted, 
would  be  triable,  and  the  place  where  such  issue  would  be  triable 
is  dependent  upon  the  place  where  the  material  facts  occurred. 
The  court,  however,  without  passing  upon  this  question,  merely 
suggested  this  to  be  its  probable  holding.  Peo.  ex  rel.  Davejiport 
V.  Riee,  68  Hun,  26,  52  St.  Rep.  51. 

A  judge  at  chambers,  however,  has  no  jurisdiction  either  in  the 
first  judicial  district,  or  elsewhere  in  the  State,  to  issue  a  writ  of 
mandamus.  For,  even  though  the  application  for  a  writ  of  man- 
damus is  a  motion,  within  §  760,  and  a  judge  out  of  court  is 
permitted  to  hear  motions  in  the  first  judicial  district  by 
I  770,  yet,  the  writ  of  mandamus  is  taken  out  of  the  operation  of 
these  sections  by  the  peremptory  and  unequivocal  language  of 
§  2068.      Peo.  ex  rel.  Lower  v.  Donovan,   135    N.  Y.  80-82,  29 


IQO  MANDAMUS. 


Art.   2.     By  What  Court  Writ  may  be  Granted. 


Abb.  N.  C.  176,  47  St.  Rep.  836,  reversing  63  Hun,  512,  45  St. 
Rep.  141,  18  N.  Y.  Supp.  501.  In  this  case  the  appeal  was  from 
an  order  of  the  General  Term,  adjudging  the  defendant  guilty  of 
contempt  in  disobeying  an  order  of  mandamus,  issued  on  a  day 
of  general  election  by  a  judge  at  chambers,  which  mandamus 
required  the  defendant,  an  inspector  of  election  in  the  first 
judicial  district,  to  show  cause  why  a  peremptory  writ  of  manda- 
mus should  not  issue  compelling  him  to  permit  the  relator,  an 
elector,  to  take  the  disability  oath,  etc.,  as  provided  by  the  Elec- 
tion Law.  If  mandamus  cannot  be  so  issued  by  a  judge  at  cham 
bers,  there  is  no  remedy  to  compel  the  reception  of  an  elector's 
vote  when  it  is  refused.  Yet  the  court  says:  "  The  voter  who 
is  refused  the  right  to  vote  cannot  resort  to  any  court  for 
relief  until  after  his  right  is  lost,  as  no  court  can  entertain 
his  application  on  election  day.  If  an  enlarged  jurisdiction 
in  these  cases  is  expedient,  the  remedy  is  with  the  legisla- 
ture. 

A  peremptory  writ  of  mandamus  cannot  be  granted  at  cham- 
bers. Matter  of  Manning,  71  Hun,  236,  24  Supp.  1039,  54  St. 
Rep.  562. 

While  §  2068  Code  Civil  Procedure  provides,  that  a  writ  of 
mandamus  can  be  granted  only  at  a  Special  Term  held  within  the 
judicial  district  embracing  the  county  wherein  the  issue  of  fact 
joined  upon  an  alternative  writ  of  mandamus  is  triable ;  yet,  it 
is  no  objection  that  the  order  to  show  cause  why  a  peremptory 
writ  of  mandamus  may  not  issue  is  granted  at  a  Special  Term  out 
of  the  district  embracing  the  proper  county,  if  it  is  made  return- 
able at  a  Special  Term  in  the  proper  district.  The  court  says : 
"  If  the  application  for  mandamus  itself  is  made  within  the 
proper  district,  I  can  see  no  objection  to  a  judge  of  Special  Term 
in  any  part  of  the  State  making  the  order  to  show  cause  for  the 
purposes  in  question,  provided  it  is  made  returnable  at  a  Special 
Term  held  in  the  district  embracing  the  county  wherein  the  issue 
of  fact  joined  upon  an  alternative  writ  of  mandamus  would  be 
triable."  People  ex  rel.  C rouse  v.  Sufrs  of  Fulton  Co.,  70  Hun,  562, 
53  St.  Rep.  798,  24  Supp.  399. 

The  provisions  of  §  2068,  that  a  writ  of  mandamus  can  be 
granted  only  at  a  Special  Term,  apply  only  to  the  original  appli- 
cation for  the  writ,  and  the  section  docs  not  limit  the  effect  of 
§  13 1 7  of  the  Code,  and   on  api)cal  the  appellate    division    may 


MANDAMUS.  igi 


Art.  3.     Alternative  and  Peremptory  Writs. 


reverse^  affirm,  or  modify  the  order.     People  ex  rel.  Kavatiaugk  v. 
Grady,  20  App.  Div.  27. 

In  1874,  before  the  enactment  of  the  present  Code  of  Civil 
Procedure,  it  was  held  that  Laws  1873,  chap.  239,  extending  the 
jurisdiction  of  the  Court  of  Common  Pleas  for  the  county  of  New 
York,  and  certain  other  courts  therein  named,  empowered  these 
courts  to  issue  the  writ  of  mandamus,  as  their  jurisdiction  was 
extended  so  as  to  be  concurrent  and  co-extensive  with  that  of 
the  Supreme  Court.  People  ex  rel.  Ryan  v.  Green,  58  N.  Y.  295, 
But  these  courts  are  now  abolished. 

When  an  issue  of  fact  upon  an  alternative  writ  of  mandamus 
has  been  referred  as  provided  for  in  §  2083,  Code  Civil  Procedure, 
such  referee  is  empowered  to  hear  and  determine  the  entire  con- 
troversy between  the  parties,  including  the  right  to  the  per- 
emptory writ  of  mandamus,  notwithstanding  the  provisions  of 
the  Code  directing  that  a  writ  should  be  issued  either  by  a 
Special  or  a  General  Term  of  the  Supreme  Court.  Peo.  ex  reL 
Krohn  v.  Miller,  39  Hun,  559,  9  Civ.  Pro.  149. 


ARTICLE  III. 

Alternative  and  Peremptory  Writs.    §  2067. 

§  2067.  Kinds  of  writ ;  how  alternative  writ  granted. 

A  writ  of  mandamus  is  either  alternative  or  peremptory.  The  alternative  writ  may 
be  granted  upon  an  affidavit,  or  other  written  proof,  showing  a  proper  case  there- 
for ;  and  either  with  or  without  previous  notice  of  the  application,  as  the  court  thinks 
proper. 

The  question  as  to  when  either  a  notice  of  motion  should  be 
given,  or  order  obtained  to  show  cause  why  peremptory  writ 
should  not  issue  on  the  one  hand,  or  an  alternative  writ  be 
applied  for  and  served  at  the  outset,  on  the  other,  is  a  perplexing 
matter  with  practitioners,  who  must  gather  their  information  on 
the  subject  entirely  from  the  books.  However,  the  practice  laid 
down  in  Commercial  Bank  v.  Canal  Commissioners,  10  Wend.  25  ; 
People  ex  rel.  v.  Judges  of  Rensselaer,  3  How.  164,  and  People  v. 
Board  of  Supervisors  of  Dittchess,  id.  379,  gives  very  substantial 
aid  on  that  point,  and  from  those  decisions  and  the  current  prac- 
tice of  the  courts,  familiar  to  those  who  have  been  accustomed  to 
have  recourse  to  this   remedy,  but  somewhat  perplexing  to  the 


192  MANDAMUS. 


Art.   3.     Alternative  and  Peremptory  Writs. 


young  practitioner,  it  may  be  said,  the  alternative  writ  is  not 
usually  asked  for  in  the  first  instance  unless  it  is  apparent  that 
a  question  of  fact  requiring  the  intervention  of  the  trial  court 
will  be  necessary.  In  case  of  no  immediate  necessity  for  early 
action,  the  usual  eight-day  notice  of  motion  is  given  for  any 
Special  Term  in  the  district.  In  case  time  is  essential,  an  order 
to  show  cause  is  obtained  upon  showing  in  the  affidavit,  which  is 
the  foundation  of  the  writ,  that  it  is  necessary  that  the  motion 
should  be  heard  at  an  earlier  date.  The  matter  then  comes  up 
on  the  affidavits  made,  and  of  course  served  with  the  order  to 
show  cause,  and  in  case  no  issue  of  fact  is  made,  it  becomes  a 
question  of  law  whether,  upon  the  plaintiff's  own  showing,  he  is 
entitled  to  the  writ,  and  in  case  he  is  so  entitled,  a  peremptory 
writ  issues  directing  the  act  to  be  performed,  and  on  the  order 
made,  the  writ  issues.  The  only  alternative  to  the  defendant 
then  is  to  perform  the  act  and  so  return  to  the  court.  In  that 
case  very  frequently  no  return  is  ever  made,  as  the  result  sought 
to  be  attained  is  accomplished  and  the  proceeding  is  abandoned, 
the  relator  having  no  further  interest  in  pressing  the  matter.  On 
the  other  hand,  in  case  the  defendant  wishes  to  appeal,  he  applies 
for  a  stay  of  proceedings  under  §  2089,  and  no  return  is  neces- 
sary, as  the  matter  goes  up  for  argument  on  the  papers  before 
the  Special  Term.  A  return  is  proper  where  the  writ  is  obeyed, 
setting  out  that  fact,  as  also  a  return  may  be  filed  showing  the 
pendency  of  an  appeal  and  stay  thereon.  So  in  case  the  writ  is 
denied,  the  relator  may  appeal,  and  the  matter  comes  up  before 
the  General  Term  as  to  whether  or  not  the  Special  Term  should 
issue  the  writ.  But  in  case  the  facts  are  disputed  by  defendant, 
upon  the  coming  on  of  the  motion,  a  resort  must  be  had  to  the 
alternative  writ,  and,  as  will  be  seen  hereafter,  that  writ  takes  the 
form  of  a  pleading  to  which  an  answer  is  interposed  and  the 
issue  tried.  It  will  be  noticed  in  the  older  cases  that  doubt  is 
thrown  upon  the  right  to  appeal  from  an  order  denying  the  writ, 
and  that  it  is  suggested  that  the  alternative  writ  be  resorted  to 
in  such  case  ;  this  is  not  now  followed  in  practice,  the  appeal 
being  taken,  as  before  stated,  from  the  order  denying  the 
motion  for  the  writ ;  this  question,  however,  is  more  appro- 
priately treated  under  §  2078. 

The  Code  of  Civil  Procedure  follows  the  old  practice  and  pro- 
vides for  two  kinds  of  writ  of  mandamus,  the  peremptory  w^rit 


MANDAMUS.  I93 


Art.   3.      Alternative  and  Peremptory  Writs. 


and  the  alternative  writ.  Either  of  these  may  issue  in  the  first 
instance,  dependent  upon  whether  an  issue  of  fact  is  involved. 
(The  procedure  under  each  writ,  and  the  circumstances  which 
determine  which  of  the  two  is  proper,  will  be  treated  in  detail  in 
the  following  pages.)  But  it  may  be  stated  as  a  broad  distinction, 
that  the  peremptory  writ  issues  in  the  first  instance  only  when 
there  is  no  dispute  as  to  the  facts  upon  which  the  writ  is  asked 
for  ;  in  other  words,  when  there  is  a  question  of  law  only,  and 
the  facts  of  the  moving  af^davit  are  admitted  by  defendant,  and 
no  other  facts  are  set  forth  which  would  be  a  good  defence  by 
way  of  answer,  if  the  relator's  afifidavit  were  considered  as  a  com- 
plaint in  an  action  at  law.  People  ex  rel.  Hasbroiick  v.  Supervisors, 
135  N.  Y.  522  ;  People  ex  rel.  ScJiwagerv.  Maclean,  25  Abb.  N.  C. 
471,  Code  of  Civil  Procedure,  §  2070;  Lire  Haeblerw.  N.  Y. 
Produce  Exchange,  149  N.  Y.  418. 

Issue  of  the  pecemptory  writ  in  the  first  instance  is  preferable 
wherever  it  is  proper,  as  the  relief  is  speedy,  while  an  alterna- 
tive writ  is  only  returnable  twenty  days  after  service,  when  the 
defendant  answers  or  demurs,  and  the  subsequent  proceedings 
are  the  same  as  in  an  action.  Code  Civ.  Proc.  §§  2072,  2076, 
2079,  2082.  With  the  peremptory  writ,  however,  it  is  different. 
The  defendant  is  brought  into  court  on  an  eight  days'  notice  that 
the  court  will  be  moved  for  a  peremptory  writ,  or,  in  a  proper 
case,  by  an  order  to  show  cause  why  the  writ  should  not  issue  on 
short  notice  prescribed  by  the  court  issuing  the  order.  On  this 
motion  for  the  peremptory  writ,  the  practice  in  its  broad  lines  is 
as  follows  :  If,  on  the  return  day,  the  defendant  raises  no  issue  of 
fact,  and  if  the  right  of  the  relator  is  sustained  as  a  matter  of  law, 
the  peremptory  writ  issues  at  once  and  in  the  first  instance  ;  but 
if  a  question  of  fact  is  raised  on  the  hearing  of  the  motion,  an 
alternative  writ  issues  instead  of  the  peremptory  writ  demanded, 
and  the  questions  of  fact  are  subsequently  tried.  People  ex  rel. 
Hartford  Life  Ins.  Co.  v.  Fairman,  91  N.  Y.  386;  People  ex  rel. 
Daniels  v.  Crawford,  68  Hun,  548  ;  People  ex  rel.  Crouse  v.  Super- 
visors^ 70  Hun,  562. 

Whenever  there  is  a  hearing  upon  an  alternative  writ,  issued 
either  in  the  first  instance  or  upon  the  denial  of  a  peremptory 
writ  owing  to  a  question  of  fact  arising,  a  peremptory  writ  issues 
and  is  in  the  nature  of  a  final  judgment,  upon  the  contentions  of 
the  relator  in  fact  and  in  law  being  upheld  upon  such  hearing. 
13 


194 


MANDAMUS. 


Art.   3.     Alternative  and  Peremptory  Writs. 


Thus  it  will  be  seen  that  there  are  in  reality  two  peremptory 
writs:  (i)  the  summary  writ  issued  in  the  first  instance  upon 
notice  of  motion  or  order  to  show  cause,  where  there  is  no  ques- 
tion of  fact  and  there  is  a  clear  right  in  the  relator,  and  (2)  as  a 
final  judgment  upon  the  determination  of  an  alternative  writ. 

The  practical  reason  for  resorting  to  the  alternative  writ  only, 
when  it  is  found   necessary   by  reason  of  questions  of  fact  being 
raised,  is  doubtless  the  greater  ease  and  simplicity  of  the  proceed- 
ing by   motion    for  the   peremptory   writ,   which  only   involves 
motion  papers,  and  not  the   more  complicated  machinery  of  the 
alternative  writ,  which,  when  thus  used,  has  only  the  effect  of  an 
order  to  show  cause,  unless  in  a  special  case  some  ulterior  object 
is  sought.      A  peremptory  writ  will   usually  be   granted  on  the 
return  of  the  order  to   show  cause,   if  the   relator's  affidavits  are 
not  met  or  avoided  where  he  has  the  legal  right  to  relief.     People 
v.  Assessors,  52   How.  140  ;  Achlcy  s  Case,  4  Abb.  35  ;  Ex  parte 
Rogers,  7  Cow.  526  ;  People  ex  rel.  v.  Throop,  12  Wend.  183  ;  Peo- 
ple ex  rel.  v.  Supervisors,  11   Abb.  114,  affirmed,  3  Abb.  Ct.  App. 
Dec.  566;  People  V.  Supervisors,  2  YLqyqs,  2^Z  ;  People  ex  rel.  y.  Su- 
pervisors, 64  N.  Y.  600  ;  see  People  ex  rel.  v.  Contracting  Board, 
27   id.   378;  People  v.  Commissioners  of  Highway,  6  Wend.  559; 
Peoples.  Commissioners  of  Highway,  7  id.  475  ;  People  v.  Cayuga 
Common  Pleas,  10  id.  632  ;  People  v.  Beebe,  i  Barb.  379  ;  People  v. 
Brennan,    39   id.   522.     When   opposing    affidavits   are    read    on 
application  for   the  writ,  conflicting  with  the   moving  affidavits, 
and  the  relator  demands  a  peremptory  writ,  it  is  equivalent  to  a 
demurrer  on   his   part,  and   the   right  to  the   writ  must   be   de- 
termined on  the  assumption  that  the  opposing  affidavits  are  true. 
People  ex  rel.  v.  Becker,  3  State  Rep.  202  ;  People  v.  Cromivell,  102 
N.  Y.  477,  reversing  38  Hun,  384.     On  the  other  hand,  where  the 
defendant  proceeds  to  a  hearing  without  traversing  the  averments 
of  the  moving  affidavits,  this  is  equivalent  to  a  demurrer  on  his 
part,  and  the  truth  of  plaintiff's  averments  is  to  be  considered  as 
admitted.     People  ex  rel.  v.  Supervisors  of  St.  Lazvrcncc,  103  N.  Y. 
541.     Wliere,  according  to  welksettled  rules  of  law,  the  relator  is 
entitled  on   all  the  papers  to   all   the   relief  asked   for,   the  writ 
must  issue  in  the  first  instance.     It  is  sufficient  that  no  defence 
appears  on  the  papers.     People  ex  rel.  v.  Supervisors  of  Otsego,  5 1 
N.  Y.  401.     It  has  been  held  that  on  application  for  alternative 
writ,  if  the  defendant  does  not  show  cause  sufficient  to  prevent 


MANDAMUS.  I95 


Art.  3.     Alternative  and  Peremptory  Writs. 


the  issue  of  a  peremptory  writ,  that  writ  may  issue.  People  v. 
TJiroop,  12  Wend.  183  ;  Ex  parte  Jennings,  6  Cow.  518.  But  a 
relator  is  not  entitled  to  a  peremptory  writ  if.  a  material  issue  of 
fact  is  raised  by  affidavits.  When  the  right  to  a  writ  depends  on 
disputed  questions  of  fact  an  alternative  writ  is  proper.  People 
V.  Becker,  3  State  Rep.  202.  The  peremptory  writ  will  be 
awarded  where  the  return  to  the  alternative  writ  is  insufficient  or 
evasive.  Matter  of  Trustees  of  Williamsburg,  i  Barb.  34  ;  People 
V.  Seymour,  6  Cow.  579  ;  People  v.  Collins,  7  Johns.  549.  Wliere 
argument  has  been  had  on  application  for  a  peremptory  writ  and 
decision  made  denying  it,  no  request  having  been  made  to  issue 
the  alternative  writ  before  the  determination,  a  motion  by  relator 
to  modify  the  order,  so  as  to  permit  an  alternative  writ,  is  directed 
to  the  discretion  of  the  court,  and  its  decision  is  not  reviewable 
by  the  Court  of  Appeals.  People  ex  rel.  v.  Wendell,  71  N.  Y.  171  ; 
People  ex  rel.  v.  Fair  man,  91  id.  385  ;  People  w .  Board  of  Apportion- 
ment, 64  id.  627.  The  peremptory  writ  will  not  issue  except  in 
case  of  clear  unquestioned  legal  right.  It  should  not  be  granted 
on  a  disputed  claim  or  where  its  validity  is  controverted.  In 
such  case  an  alternative  writ  is  proper.  People  ex  rel.  v.  Super- 
visors, 64  N.  Y.  600;  People  ex  rel.  v.  Wendell,  71  id.  171.  And 
this  has  been  held  in  one  ca.se  to  be  the  rule  in  a  case  where  the 
affidavits  in  opposition  are  evasive.  People  v.  Supervisors,  5 
Week.  Dig.  538.  On  appeal  from  an  order  directing  an  attach- 
ment for  a  contempt  in  disobeying  a  mandamus,  the  court  may 
direct  a  new  peremptory  writ  to  issue  in  such  form  as  to  meet  the 
exigencies  of  the  case.  People  ex  rel.  v.  Supervisors  of  Delaware, 
9  Abb.  (N.  S.)  408,  affirmed,  45  N.  Y.  196.  On  an  application 
for  the  peremptory  writ,  the  court  will  take  the  facts,  so  far  as 
they  are  disputed,  as  they  appear  by  defendant's  affidavits. 
People  ex  rel.  v.  Rie hards,  99  N.  Y.  620.  In  People  ex  rel.  v.  Rome, 
ete.,  R.  R.  Co.,  103  N.  Y.  95,  3  State  Rep.  39,  it  is  held  by  the 
court,  Earl,  J.,  writing  the  opinion,  that  in  determining  whether 
a  peremptory  writ  is  properly  issued,  the  court  can  consider  only 
such  facts  alleged  in  the  petition  as  are  not  denied  or  put  in  issue 
and  the  affirmative  allegations  on  the  part  of  the  defendant  in 
opposition  to  the  writ.  Where  the  material  allegations  of  the 
application  for  the  writ  are  put  in  issue,  or  where  the  answering 
affidavits  contain  allegations  showing  that  a  peremptory  writ 
ought  not  to  be  issued,    the  court  should  award  an   alternative 


196  MANDAMUS. 


Art.  3.     Alternative  and  Peremptory  Writs. 


mandamus  in  the  first  instance  in  order  that  the  issue  of  fact  may 
be  regularly  tried  before  the  proper  tribunal.  The  order  granting 
the  writ  may  be  entitled.     People  v.  Sage,  2   How.  60. 

A  peremptory  writ  of  mandamus  can  only  be  granted  in  the 
first  instance  in  case  the  applicant's  right  thereto  depends  only 
upon  questions  of  law.  Upon  a  motion  for  a  peremptory  man- 
damus, if  opposing  affidavits  are  read  which  conflict  with  the 
moving  affidavits,  the  right  to  the  writ  must  be  determined  upon 
the  assumption  that  the  averments  of  the  opposing  affidavits  are 
true,  and  if  the  relator  desires  to  controvert  or  avoid  the  state- 
ments made  in  the  opposing  affidavits,  he  should  take  an  alter- 
native writ,  so  that  the  questions  of  fact  can  be  tried.  Under 
this  rule  the  statements  of  the  answering  affidavits,  in  so  far  as 
they  conflict  with  those  served  in  behalf  of  the  relator,  must  be 
regarded  as  true.  People  ex  rel.  O' Sullivan  v.  New  York  Laiv 
School,  68  Hun,  120,  22  Supp.  663,  52  St.  Rep.  16;  People  ex  rel. 
O'Brien  v.  Criiger,  12  App.  Div.  537  ;  People  ex  rel.  Del  Mar  v. 
St.  Louis  &-  S.  F.  Ry.  Co.,  47  Hun,  544  ;  People  ex  rel.  Sickels  v. 
Becker,  3  St.  Rep.  206  ;  People  ex  rel.  Hasbrouck  v.  Supervisors, 
135  N.  Y.  528,  48  St.  Rep.  536;  People  v.  Supers,  of  Monroe,  65 
Hun,  296,  47  St.  Rep.  480  ;  Matter  of  Kline,  17  Misc.  675  ;  Matter 
of  McDonald  &  Co.,  16  Misc.  306  ;  People  ex  rel.  Weed,  Parsons  & 
Co.  V.  Palmer,  14  Misc.  42;  Matter  of  Loader,  14  Misc.  213; 
Matter  of  Loftus,  41  St.  Rep.  357,  16  Supp.  327  ;  Peo.  ex  rel- 
Leerlmrger  v.  M.  R.  F.  L.  Assn.,  15  Misc.  333,  73  St.  Rep.  315  ; 
Matter  of  Grady,   15  App.  Div.  506. 

Martin,  J.,  in  People  ex  rel.  Corrigan  v.  TJic  Mayor,  etc.,  149  N.  Y. 
223,  thus  summarizes  the  practice :  "  Section  2070  of  the  Code  of 
Civil  Procedure  provides  that  a  peremptory  writ  of  mandamus 
may  be  issued  in  the  first  instance  where  the  applicant's  right  to 
the  mandamus  depends  only  upon  the  questions  of  law,  and  the 
proper  notice  has  been  given  ;  in  every  other  case  a  peremptory 
writ  cannot  be  issued  until  an  alternative  writ  has  been  issued, 
served,  and  the  return  day  therefor  has  elapsed.  Where,  upon 
motion  for  a  mandamus,  opposing  affidavits  are  read  which  are 
in  conflict  with  the  averments  of  the  affidavits  of  the  relator,  and 
notwithstanding  this,  the  relator  demands  a  peremptory  writ,  it 
is  equivalent  to  a  demurrer,  and  the  question  as  to  tiie  right  to 
the  writ  must  be  determined  upon  the  assumption  that  the  aver- 
ments  of  the   opposing  affidavits   are   true."      The   court    says 


MANDAMUS.  197 


Art.  3.     Alternative  and  Peremptory  Writs. 


further  :  "  The  only  allegations  contained  in  the  relator's  affidavit 
which  are  to  be  taken  as  true  are  the  allegations  of  fact  that  are 
undisputed,  and  any  allegation  contained  therein  which  is  a  mere 
conclusion  of  law  should  not  be  considered." 

In  determining  whether  the  issuing  of  the  peremptory  writ  is 
proper  in  the  first  instance,  simply  the  facts  alleged  in  the  peti- 
tion which  are  not  denied  or  put  in  issue,  and  the  affirmative 
allegations  in  the  opposing  affidavits,  may  be  considered,  and  if 
the  substantial  allegations  in  the  moving  affidavits  are  not  fully 
met,  or  avoided,  a  peremptory  writ  will  be  granted  in  the  first 
instance  as  a  general  rule  ;  but  while  uncontroverted  statements 
of  fact  contained  in  the  opposing  affidavits  must  be  taken  as  true 
for  the  purposes  of  the  motion,  yet  this  is  not  so  in  respect  to 
mere  conclusions  or  inferences  therein  averred.  Matter  of  Rams- 
dale  V.  Supervisors,  8  App.  Div.  553. 

The  peremptory  writ  can  only  be  had  upon  motion  where  the 
applicant's  right  depends  upon  questions  of  law,  and  if  the  deci- 
sion of  any  disputed  question  of  fact  should  be  necessary,  the 
proper  course  is  for  the  court  to  direct  an  alternative  writ  to 
issue,  so  that  the  defendant  may  make  a  return  thereto,  and  so 
that  the  issue  of  fact  raised  upon  that  return  can  be  tried  by  a 
jury.  However,  if  the  facts  raised  by  the  opposing  affidavits 
involve  only  a  question  of  law,  such  as  the  reasonableness  of  a 
regulation  adopted  by  the  State  Commission  of  Lunacy,  the 
matter  will  be  determined  as  a  question  of  law  upon  the  motion, 
and  evidence  will  not  usually  be  received  upon  the  question. 
But  if  the  necessity  and  reasonableness  of  such  a  regulation 
should  depend  upon  the  existence  of  particular  facts  of  which 
the  court  cannot  take  judicial  notice,  then  the  matter  will  be  left 
to  be  decided  as  a  question  of  fact  upon  proper  evidence.  People 
ex  rel.  Croft  v.  Manhattan  Hospital,  5  App.  Div.  249. 

It  has  been  held  that  the  truth  or  falsity  of  the  denials  in  the 
opposing  affidavits  cannot  be  inquired  into  so  as  to  enable  the 
court  to  issue  a  peremptory  writ,  although  they  may  be  inquired 
into  so  as  to  satisfy  the  court  as  to  the  propriety  of  granting  an 
alternative  writ  ;  and  for  the  purpose  of  issuing  the  peremptory 
writ  in  the  first  instance,  the  denials  of  a  respondent  cannot  be 
regarded  as  sham,  nor  can  they  be  disregarded  because  the  pre- 
ponderance of  evidence  seems  to  be  with  the  relator.  People  ex 
rel.  Del  Mar  v.  St.  Louis  &  S.  F.  Rj.  Co.,  47  Hun,  545. 


198  MANDAMUS. 


Art.  3.     Alternative  and  Peremptory  Writs. 


Where  the  material  allegations  of  the  application  for  a  writ 
are  put  in  issue,  or  where  the  answering  affidavits  contain  allega- 
tions showing  that  a  peremptory  writ  ought  not  to  be  issued, 
the  court  should  award  an  alternative  mandamus  in  the  first 
instance,  in  order  that  the  issues  of  fact  may  be  regularly  tried 
before  the  proper  tribunal.  People  v.  Rome,  Watertowndf  Ogdens- 
burg  R.  R.  Co.,   103  N.  Y.  95. 

While  the  writ  can  properly  be  granted  only  upon  notice,  if  it 
is  granted  without  notice  and  the  defendant  appears  and  without 
objection  makes  a  return  thereto,  the  objection  is  waived.  People 
ex  rel.  Hasbroiick  v.  Supervisors,  135  N.  Y.  532,  48  St.  Rep.  536. 
It  was  held  by  the  General  Term  that  want  of  notice  of  the 
application  for  the  peremptory  writ  of  mandamus  is  sufficient  to 
dismiss  the  proceeding.  People  ex  rel.  Hasbroiick  v.  Bd.  of  Can- 
vassers, 45  St.  Rep.  614,  18  Supp.  302. 

While  the  alternative  writ  of  mandamus  may  issue  either  with 
or  without  notice  by  §  2067  of  the  Code  of  Civil  Procedure,  the 
peremptory  writ  can  issue  only  upon  notice.  Herrick,  J.,  thus 
summarizes  the  present  practice  under  mandamus  :  "  A  practice 
has  grown  up  based  upon  the  common-law  practice  of  applying 
to  the  court  or  a  judge  in  chambers  upon  petition  or  affidavit, 
for  an  order  requiring  the  person,  officer,  or  board  to  whom  it  is 
directed  to  do  the  thing  asked  for  by  the  relator  or  to  show  cause 
at  a  Special  Term  why  a  mandamus  should  not  issue  compelling 
the  person,  officer,  or  board  to  do  the  thing  specified  in  the  order; 
then,  upon  the  return  day,  if  the  thing  has  not  been  done  and 
there  is  no  dispute  as  to  the  facts,  a  peremptory  mandamus  is 
issued  in  the  form  required  by  the  Code  ;  if  the  facts  are  disputed, 
an  alternative  writ  of  mandamus  is  granted  in  the  form  and 
m;inncr  and  returnable  as  prescribed  by  chapter  16,  tit.  2,  art.  4, 
of  the  Code  of  Civil  Procedure.  This  practice  is  convenient. 
The  order  to  show  cause  takes  the  place  of  and  is  in  fact  a  notice, 
and  in  many  instances  results  in  bringing  the  controversy  to  a 
termination  much  quicker  than  if  an  alternative  mandamus  was 
issued  in  the  first  instance  returnable  in  twenty  days  after  the 
service  thereof,  as  required  by  ^  2072  of  the  Code.  This  practice 
enables  parties  to  move  promptly  to  obtain  the  relief  they  seek, 
it  affords  the  party  proceeded  against  an  opportunity  to  comply 
with  the  demands  of  the  relator  if  he  has  no  defence  in  fact  or 
law.  ...   If,   upon   the   hearing    of   such    order    to  show   cause, 


MANDAMUS.  1 99 


Art.  3.     Alternative  and  Peremptory  Writs. 


there  is  no  dispute  as  to  the  facts,  but  simply  a  question  of 
law,  and  a  perennptory  mandamus  is  issued,  I  think  it  comes 
within  §  2070  of  the  Code,  the  order  to  show  cause  having  ful- 
filled all  the  ofifices  of,  and  being,  in  fact,  a  notice  of,  the  applica- 
tion." People  ex  rcl.  Crouse  v.  Supervisors,  70  Hun,  562,  53  St. 
Rep.  798,  24  Supp.  399. 

It  has  been  held  that  upon  the  hearing  of  a  motion  for 
peremptory  mandamus,  the  court,  when  desiring  fuller  informa- 
tion before  proceeding,  may  order  a  reference  to  take  proof  of 
the  facts  alleged  in  the  afifiidavits  presented  by  the  respondent, 
and  direct  that  the  persons  making  the  same  appear  before  the 
referee  for  examination.  The  object  of  this  reference  is  to  make 
more  certain  and  reliable  the  unsatisfactory  denials  contained  in 
answering  affidavits,  and  thus  to  secure  such  information  as  will 
enable  the  court  better  to  understand  and  dispose  of  the  motion. 
People  ex  rel.  Del  Mar  v.  St.  Louis  &  S.  F.  Ry.  Co.,  44  Hun,  552, 
19  Abb.  N.  C.  3  :  but  it  is  not  intended  by  this  case  to  authorize 
a  reference  as  to  a  disputed  fact,  it  is  only  for  the  further  informa- 
tion of  the  court.  People  ex  rel.  Hoffman  v.  Tedcastle,  \2  Misc. 
469,  68  St.  Rep.  136,  34  Supp.  257. 

The  only  allegations  contained  in  the  relator's  affidavit  which 
are  to  be  taken  as  true  are  the  allegations  of  fact  that  are  undis- 
puted, and  any  allegation  contained  therein  which  is  a  mere  con- 
clusion of  law  should  not  be  considered.  People  ex  rel.  Corrigan 
V.  The  Mayor,  149  N.  Y.  215.  The  writ  will  only  issue  where 
it  is  within  the  power  of  the  person  to  whom  the  writ  would 
issue  to  perform  the  act.  People  ex  rel.  Hoffman  v.  Tedcastle,  12 
Misc.  469,  68  St.  Rep.  136,  34  Supp.  257. 

A  peremptory  writ  of  mandamus  will  issue  in  the  first  instance 
only  where  the  applicant's  right  to  it  depends  solely  upon  matters 
of  law.  When  any  matters  of  fact  arises,  the  peremptory  man- 
damus cannot  be  issued  until  an  alternative  writ  has  been  issued 
and  served,  and  the  return  day  has  elapsed.  On  the  hearing  of  a 
peremptory  writ  the  court  can  consider  nothing  except  the  state- 
ments in  the  moving  affidavits  which  are  not  denied,  and  the 
facts  set  up  in  the  answering  affidavit.  In  re  Haebler  v.  N.  V. 
Produce  Exchange,  149  N.  Y.  418  ;  Peo.  ex  rel.  P.  C.  Savings  Bank 
V.  Cromwell,  102  N.  Y.  477. 

The  practice  in  reference  to  issuance  of  a  peremptory  writ  is 
strictly  defined  by  §  2070  of  the    Code,  and  must  be  pursued 


200  MANDxVMUS. 


Art.   3.     Alternative  and  Peremptory  Writs. 


before  the  court  can  acquire  jurisdiction  to  exercise  this  extraor- 
dinary power.    Pco.  ex  rel.  Del  Mar  v.  St.  Louis  &  S.  F.  R.  Co.,  47 

Hun,  544. 

The  requirements  of  the  Code  that  a  copy  of  the  papers  upon 
which  the  appHcation  is  founded  must  be  served  with  the  order 
to  show  cause  is  a  substantial  one,  as  these  papers  are  in  the 
nature  of  a  complaint  to  which  the  respondent  is  required  to 
answer  or  demur  upon  the  return  day  of  the  order,  and  hence  must 
be  served  in  order  that  the  respondent  may  be  apprised  of  their 
contents.  Upon  the  hearing,  the  consideration  of  affidavits  not 
served  is  error,  if  properly  objected  to,  but  if  no  objection  be 
made  the  error  will  be  deemed  to  have  been  waived.  Pco.  ex  rel. 
Del  Mar  v.  St.  Louis  &  S.  F.  R.  Co.,  47  Hun,  544. 

Even  where,  under  the  circumstances,  the  denial  of  the  per- 
emptory writ  and  the  issue  of  the  alternative  writ  will  result  in 
a  practical  denial  of  the  relief,  owing  to  the  delay  incident  to 
a  trial ;  yet  if  the  answering  afifidavits  raise  an  issue  of  fact  the 
alternative  writ  only  can  be  granted.  The  court  says:  "  If  it  be 
a  defect  in  the  law  that  the  time  for  the  trial  of  such  issues  may 
not  be  shortened  by  the  court,  the  suggestion  is  only  to  be  made 
to  the  legislature,  not  to  the  court."  Matter  of  Loader,  14  Misc. 
213,  35  Supp.  996.  A  peremptory  writ  issued  without  notice  to 
the  board  of  canvassers  of  election  must  be  quashed  under  §  2070 
of  the  Code,  where  no  notice  of  the  application  for  the  writ  has 
been  given  as  required  by  such  section.  Peo.  v.  Board  of  Sup. 
Dutchess  Co.,  18  Supp.  302. 

It  seems  that  even  where  a  case  has  been  made  out  authorizing 
a  peremptory  mandamus,  the  court  may  in  its  discretion  issue  an 
alternative  writ  instead.  Peo.  ex  rel.  Slavin  v.  Wendell,  71  N.  Y. 
172.  Where,  upon  the  hearing  of  a  motion  for  a  peremptory 
writ,  the  relator  desires  an  alternative  writ  to  issue,  he  must  ask 
for  it  ;  otherwise  it  will  be  assumed  that  he  is  willing  to  take  the 
chance  of  maintaining  his  right  to  a  peremptory  writ  upon 
appeal,  and  does  not  desire  an  alternative  writ.  And  he  has  no 
ground  for  complaint  that  the  alternative  writ  was  not  granted. 
Peo.  ex  rel.  Slavin  v.  Wendell,  71  N.  Y.  172. 

It  has  been  held  that,  when  the  relator  in  a  motion  for  a  per- 
emptory mandamus  argues  the  questions  involved  by  the  con- 
flicting affidavits,  it  is  in  the  nature  of  a  demurrer  to  the  legal 
sufficiency  of  the  opposing  proof,  and  when   that  is  done  the 


MANDAMUS.  20r 


Art.  3.     Alternative  and  Peremptory  Writs. 


alternative  writ  will  not  issue.  Peo.  ex  rel.  Bush  v.  County  Can-^ 
vassers,  66  Hun,  268,  49  St.  Rep.  528,  citing  Peo.  ex  rel.  Hart- 
ford Life  Ins.  Co.,  91  N.  Y.  387. 

The  Code  provides  that  notice  of  the  application  for  a  peremp- 
tory writ  should  be  given  to  the  respondent,  and  where  no  such 
notice  has  been  given,  and  the  respondents  appear,  make  their 
return,  and  submit  themselves  to  the  jurisdiction  of  the  court 
without  objection,  it  is  then  too  late  for  them  to  object  that  they 
have  not  received  such  notice.  Peo.  ex  rel.  Hasbroiuk  v.  Board 
of  Sup.,  135  N.  Y.  522. 

Positive  allegations  in  moving  affidavits  are  not  put  in  issue  by 
denials  upon  information  or  want  of  information  in  the  answer- 
ing affidavits,  and  in  such  cases  the  peremptory  writ  will  issue.. 
The  court  says,  "  That  form  of  denial  for  the  purpose  of  meeting: 
the  averments  of  a  positive  affidavit  upon  a  special  motion, 
really  amounts  to  nothing.  The  Code  has  allowed  it  in  the 
answer  or  reply  in  forming  issues  of  a  fact  by  way  of  pleading,, 
but  it  has  not  been  sanctioned  or  allowed  for  any  other  pur- 
pose. The  applicant's  affidavit  may  very  well  be  literally  true,, 
and  at  the  same  time  the  person  verifying  the  answer  may 
have  had  no  knowledge  or  information  whatever  upon  the  sub- 
ject. For  that  reason  the  answer  does  not  tend  to  discredit 
the  statements  made  in  the  affidavit,  and  it  must  therefore 
be  taken  to  be  presumptively  correct  as  to  the  applicant's 
title."  Peo.  ex  rel.  Harrinian  v.  Paton,  5  Supp.  314,  20  Abb. 
N.C.  195.  The  rule  that  the  peremptory  writ  will  not  issue  if 
there  is  a  question  of  fact,  has  been  held  even  where  the  affi- 
davits of  the  respondent  are  very  evasive.  Peo.  ex  rel.  Board  of 
Sup.  of  Albany,  5  Weekly  Dig.  538.  But  it  is  held  that  the 
opposing  affidavits  must  raise  issues  of  fact  fairly  within  the 
rules  of  procedure  and  pleading,  in  order  to  compel  the  issuance 
of  an  alternative  writ,  and  a  denial  of  a  peremptory  writ  in  the 
first  instance  ;  and  so  where  the  denials  of  the  respondent's  affi- 
davits are  open  to  objection  because  of  their  general  and  indef- 
inite character,  they  will  be  disregarded  and  the  peremptory 
writ  will  issue.  Matter  of  Freel,  89  Hun,  81  ;  35  Supp.  59,  69  St, 
Rep.  271. 

Likewise,  on  the  application  for  mandamus  to  compel  the  re- 
instatement of  relator,  on  the  ground  that  he  was  a  veteran,  the 
affidavit  of  the  respondent  that  he  was  informed  that  the  relator 


202  MANDAMUS. 


Art.  3.     Alternative  and  Peremptory  Writs. 


wa.s  not  a  veteran  raises  no  issue  of  fact  where  the  relator's  cer- 
tificate of  discharge  was  set  forth  in  the  moving  affidavits,  and 
there  was  no  denial  of  its  validity.  Pco.  ex  rcl.  Drake  v.  Sutton, 
88  Hun,  175,  34  Supp.  487. 

In  a  case  where  an  alternative  writ  would  ordinarily  be  re- 
quired, the  parties,  by  agreeing  to  a  statement  of  facts,  may  pro- 
ceed thereon  by  motion  for  a  peremptory  writ.  See  Peo.  ex  rel. 
V.  N.  v.,  L.  E.  &  IV.  R.  R.  Co.,  47  Hun,  43,  disapproved,  24 
Abb.  N.  C.  161.  But  on  the  application  for  a  peremptory  writ  in  the 
first  instance  the  denials  of  the  defendant  cannot  be  regarded 
as  sham,  nor  can  they  be  disregarded  because  the  preponderance 
of  evidence  seems  to  be  with  the  relator,  and  only  an  alternative 
writ  can  issue.  Peo.  ex  rel.  Del  Mar  v.  St.  Louis,  etc.,  Co.,  47 
Hun,  543. 

When  the  relator  applied  for  mandamus  to  reinstate  him  to  a 
public  position,  on  the  ground  that  he  was  a  veteran,  it  was  held 
that  respondent's  affidavit  stating  that  relator  was  discharged  for 
failure  properly  to  attend  to  his  duties  raised  an  issue  of  fact, 
and  the  alternative  writ  only  could  issue.  Peo.  ex  rel.  Curtin  v. 
Board  of  Education  of  Brooklyn,  41  St.  Rep.  791,  16  Supp.  676. 
When  the  relator  takes  a  peremptory  writ  in  the  first  instance, 
all  the  allegations  in  the  answering  affidavits  are  to  be  taken  as 
true,  and  therefore  it  was  held  to  be  error  for  a  peremptory  writ  to 
issue,  directing  the  payment  of  a  $1,075  claim  when  the  answering 
affidavits  stated  that  the  services  were  not  worth  more  than  $600, 
Peo.  ex  rel.  McGovern  v.  Trustees  of  Penn  Yann,  2  App.  Div.  32, 
73  St.  Rep.  151,  37  Supp.  535,  affirmed,  153  N.  Y.  643.  On  the 
application  for  a  peremptory  writ,  the  contents  of  opposing  affi- 
davits which  are  objected  to  as  not  giving  legal  reasons  for  a 
denial  of  the  writ  must  be  accepted  as  true.  Peo.  ex  rel.  Buffalo 
Paving  Co.  v.  Mooney,  4  App.  Div.  557,  73  St.  Rep.  652,  38 
Supp.  495. 

Where  one  seeks  by  mandamus  to  be  reinstated  to  a  position 
which  has  been  abolished,  the  question  whether  such  position 
was  in  good  faith  abolished,  or  whether  its  abolition  was  color- 
able only,  is  a  question  of  fact,  and  a  peremptory  writ  will  be 
denied  ;  in  such  case  the  alternative  writ  should  issue.  Peo. 
ex  rcl.  Vandcrhoff  v.  Palmer,  3  App.  Div.  389,  38  Supp.  651. 
A  peremptory  writ  can  only  be  granted  in  the  first  instance  to 
obtain   decision   of  questions  of  law  and  never  where  there  is  a 


MANDAMUS.  203 


Art.  3.      Alternative  and  Peremptory  Writs. 


dispute  as  to  material  facts,  or  where  two  opposite  inferences  may- 
be drawn  from  evidence  offered.  People  ex  rel.  Kelsey  v.  New 
York  Medical  School,  2g  App.  Div.  245,  51  Supp.  420.  Wliere 
the  relator  proceeds  upon  his  petition  and  the  opposing  affidavits 
and  demands  a  peremptory  mandamus,  the  proceeding  is  in  the 
nature  of  a  demurrer  to  the  facts  set  up  in  such  affidavits,  and 
the  right  to  the  writ  must  be  determined  on  the  assumption 
that  the  averments  of  the  opposing  affidavits  are  true.  Peo. 
ex  rel.  City  of  Buffalo  v.  N.  V.  C.  &  H.  R.  R.  R.  Co.,  156  N.  Y. 
570,  51  N.  E.  Rep.  312. 

On  a  motion  for  a  writ  of  peremptory  mandamus,  allegations 
in  the  moving  affidavits  which  are  denied  by  the  opposing  affi- 
davits are  to  be  considered  as  not  proven.  Peo.  ex  rel.  Lee  v. 
Gleeson,  32  App.  Div.  358,  53  Supp.  7,  87  St.  Rep.  7.  The  rela- 
tor, who  had  been  expelled  from  a  membership  corporation, 
and  brings  mandamus  for  reinstatement,  is  entitled  on  the 
trial  of  the  issues  to  have  submitted  to  the  jury  the  question 
whether  he  has  been  given  a  reasonable  notice  to  defend  himself 
upon  the  charges  upon  which  he  was  expelled.  People  ex  rel. 
Ward  y.  Uptown  Association,  26  App.  Div.  299,  49  Supp.  81. 

A  question  of  fact  is  raised  on  an  application  for  a  peremp- 
tory writ  to  compel  the  transfer  agent  of  a  foreign  corporation 
to  exhibit  the  transfer  book  to  a  stockholder,  when  the  transfer 
agent  denies  that  he  was  such  ;  in  such  case  the  alternative  writ 
must  issue.  Peo.  ex  rel.  Daniels  v.  Craivford,  68  Hun,  547,  22 
Supp.  1025.  Where  the  defendant's  affidavits  merely  state  the 
affiant's  ignorance  of  facts,  positively  alleged  in  the  petition  for  a 
peremptory  writ,  the  allegations  of  such  petition  are  not  put  in 
issue,  and  a  peremptory  writ  should  issue.  Peo.  ex  rel.  Adibalv. 
Bd.  of  Supvrs.,  6  Supp.  591. 

On  an  application  for  a  peremptory  writ  to  allow  the  relator 
access  to  the  defendant's  books,  it  was  held  that  when  the  affi- 
davit of  the  defendant's  officer  merely  averred  that  he  had  been 
advised  that  the  relator  was  not  the  owner  of  the  stock  men- 
tioned in  the  latter's  affidavit,  but  nowhere  denied  in  terms  that 
such  shares  were  in  fact  the  property  of  the  relator,  that  the 
averments  were  evasive,  and  not  sufficient  to  put  the  applicant's 
right  of  inspection  in  issue,  Martin  v.  Johnston  Co.,  17  Supp.  133. 
The  court  will  not  determine  upon  affidavits,  questions  of  fact, 
which  tend   to  show  the  validity  or  invalidity  of  the  resolution 


204  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


authorizing  the  act  which  is  sought  to  be  coerced.  In  such  case, 
the  peremptory  writ  will  be  refused.  SL  Stephen  CJinrcJi  Cases, 
25  Abb.  N.  C.  241.  The  peremptory  writ  will  not  issue  in  the 
first  instance,  unless  it  appears  that  the  applicant  has  a  clear  and 
unquestioned  legal  right  to  the  relief.  Peo.  ex  rel.  Schwager  v. 
MacLean,  25  Abb.  N.  C.  470.  Even  where,  under  the  circum- 
stances, the  denial  of  the  peremptory  writ  will  make  the  remedy 
unavailing,  it  will  not  issue  where  a  question  of  fact  is  raised, 
but  the  relator  can  only  have  the  alternative  writ.  People  ex  rel. 
Hoffman  v.  Tedcastle,  12  Misc.  470,  68  St.  Rep.  135,  34  Supp.  257. 

ARTICLE  IV. 

Peremptory   Writ  and   Return  Thereto.    §§  2070,  2072, 

2075,  2073,  2074. 

Sub.  I.  Parties.     §  2070. 

2.  Petition  or  affidavit. 

3.  The  writ  and  practice  on  moving  therefor. 

4.  The  return.    §§  2072,  2075,  2073,  2074. 

Sub.  I.   Parties. 

§  2070.  (Am'd,  1895.J  When  peremptory  mandamus  to  issue 
in  first  instance. 

A  peremptory  writ  of  mandamus  may  be  issued,  in  the  first  instance,  where  the  af>- 
plicant's  right  to  the  mandamus  depends  only  upon  questions  of  law,  and  notice  of 
the  application  has  been  given  to  a  judge  of  the  court,  or  to  the  corporation,  board,  or 
other  body,  ofiicer,  or  other  person,  to  which  or  to  whom  it  is  directed.  The  notice 
must  be  served,  at  least  eight  days  before  the  application  is  heard  ;  unless  a  shorter 
time  is  prescribed  by  an  order  to  show  cause,  made,  where  the  application  is  to  the 
Special  Term,  by  the  court,  or  a  judge  thereof;  or  where  the  application  is  to  the  ap- 
pellate division,  by  the  appellate  division,  or  a  justice  appellate  division  of  that 
judicial  department.  In  such  a  case  the  application  must  be  founded  upon  affi- 
davits, or  other  written  proofs,  a  copy  of  which  must  be  served  with  the  notice,  or 
order  to  show  cause.  Where  the  court,  board,  or  other  body  to  be  served,  consists  of 
three  or  more  members,  the  notice  or  order  to  show  cause,  and  the  papers  upon 
which  the  application  is  to  be  made,  may  be  served,  as  prescribed  in  the  next  section 
for  service  of  an  alternative  writ  of  mandamus.  Except  as  prescribed  in  this  section, 
or  by  special  provision  of  law,  a  peremptory  mandamus  cannot  be  issued,  until  an 
alternative  mandamus  has  been  issued  and  duly  served,  and  the  return  day  thereof 
has  elapsed. 

The  attorney-general  may  bring  the  writ  on  behalf  of  the 
State  where  a  corporation  neglects  its  public  duties.  People  v. 
N.  Y.  C.  &  IL  R.  R.  R.  Co.,  3  Civ.  Pro.  it.  In  matters  of  private 
or  corporate  right,  the  title  of  tlie  relator  to  the  right    must  ap- 


MANDAMUS.  205 


Art.  4.     Pereniptor\-  Writ  and  Return  Thereto. 


pear;  in  matters  of  public  right  any  citizen  may  be  relator. 
People  V.  Collins,  19  Wend.  56.  The  writ  may  be  applied  for 
jointly  by  parties  having  a  common  interest,  and  the  chief 
officers  of  a  city  or  town  may  be  joined  as  relators.  People  v. 
Supervisors  of  Ontario,  85  N.  Y.  324;  People  v.  Supervisors  of 
Ulster,  17  Week.  Dig.  138.  Where  a  town  was  bonded  for  a 
railroad  on  condition  that  a  depot  should  be  maintained  at  a 
certain  place,  the  agreement  must  be  enforced  by  the  town  and 
cannot  be  enforced  by  a  proceeding  instituted  by  the  attorney- 
general  on  behalf  of  the  State.  People  v.  Rome,  etc.,  R.  R.  Co., 
103  N.  Y.  95.  In  cases  where  the  interest  is  common  to  the 
whole  community,  it  is  not  necessary  that  the  relator  show  an 
individual  right,  any  person  interested  in  the  enforcement  of  a 
statutory  right  may  be  relator.  People  v.  Supervisors,  17  Hun, 
501  ;  S.  C.  85  N.  Y.  324  ;  People  v.  Halsey,  37  id.  344 ;  People 
V.  Supervisors,  56  id.  249  ;  People  v.  Asten,  62  id.  623  ;  People  v. 
Common  Council,  20  How.  401  ;  see  People  v.  Common  Council, 
20  Alb.  L.  J.  269,  Ct.  of  App. ;  s.  C.  78  N.  Y.  33  ;  People  v. 
Tracy,  i  How.  186.  It  was  held,  however,  in  People  v.  Hoyt,  66 
N.  Y.  606,  that  a  resident  and  taxpayer  could  not  compel 
assessors  to  perform  their  duty  by  mandamus. 

When  mandamus  is  issued  to  a  municipal  board  which  is  not 
incorporated,  the  individuals  who  compose  the  board  should  be 
designated  as  respondents,  and  not  the  board  itself.  People  ex 
rel.  V.  Ryan  Civil  Service  Boards  of  N.  V.,  17  Abb.  N.  C.  64,  3 
How.  N.  S.  40.  Any  citizen  may  act  as  relator  in  mandamus 
proceedings  issued  against  a  board  of  excise,  compelling  them 
to  proceed  against  a  saloonkeeper  charged  with  the  violation  of 
the  statute  forbidding  the  keeping  open  of  saloons  on  election 
day.     People  ex  rel.  Welling  v.  Meakim,  56  Hun,  628. 

A  purchaser  at  a  tax  sale  who  has  not  received  a  conveyance 
is  not  a  necessary  party  to  proceedings  by  mandamus  against 
the  registrar  to  compel  him  to  receive  taxes  and  cancel  the  sale. 
People  ex  rel.  Coopers  v.  Registrar  of  Arrears,  114  N.  Y.  22.  A 
purchaser  at  a  tax  sale  is  not  a  necessary  party  to  a  proceed- 
ing by  mandamus  to  compel  a  county  clerk  to  record  a  deed 
or  satisfaction  piece  affecting  the  title.  Matter  of  Application 
of  dementi  v.  Jackson,  92  N.  Y.  591. 

A  writ  of  mandamus  to  the  superintendent  of  public  works  to 
award  a  contract  to  the  relator,  who  has  bid  thereon,  will  not  be 


2o6  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


issued  in  a  case  where  tlic  successful  bidder  to  whom  the  contract 
has  already  been  awarded  is  not  made  a  party  to  the  proceed- 
ing. Matter  of  Hilton  Bridge  Construction  Co.,  13  App.  Div.  29. 
The  portions  of  §  452,  Code  of  Civil  Procedure,  which  requires 
the  court  in  certain  cases  to  direct  other  parties  to  be  brought 
in,  relates  to  actions  and  judgments,  and  has  no  application  to 
mandamus,  which  is  a  special  proceeding.  Thus,  where  a  candi- 
date at  a  generalelectionhasa  proceeding  for  amandamus  against 
a  board  of  canvassers,  the  opposing  candidate  is  not  a  proper 
party.  Steingoetter  v.  Board  Canvassers  Erie  Co.,  18  St.  Rep.  799. 
But  it  has  been  held  that  where  a  candidate  for  election  was  pro- 
ceeding by  mandamus  under  the  Reform  Ballot  Law,  §  31,  Laws 
1890,  chap.  262,  that  the  opposing  candidate  should  be  permitted 
to  intervene  so  as  to  protect  his  rights.  People  ex  rel.  Hasbrouck 
V.  Supervisors,  135  N.  Y.  528. 

Where  a  mandamus  has  issued,  a  third  person  aggrieved  there- 
by is  not  entitled  to  be  made  a  party  to  the  proceeding.  Matter 
of  Bohnet,  8  App.  Div.  293,  appeal  dismissed,  150  N.  Y.  279,  the 
court  holding  that  while  the  court  had  power  to  open  the  pro- 
ceedings and  allow  the  appellant  to  be  brought  in  as  a  party,  yet 
it  was  a  matter  which  rested  in  its  sound  discretion.  In  pro- 
ceedings by  mandamus  against  a  board  of  assessors,  requiring 
them  to  rectify  errors,  the  collector  of  taxes  is  properly  joined 
in  the  proceeding  in  order  to  restrain  him  from  collecting  the 
illegal  tax.  People  ex  rel.  Nostrand  v.  Wilson,  119  N.  Y.  518. 
In  a  proceeding  by  mandamus  against  a  board  of  of^cers  not 
incorporated,  the  individuals  who  compose  the  board  should  be 
made  respondents  in  an  application  for  mandamus  to  compel 
their  official  action,  but  it  seems  that  an  error  in  making  the 
board  respondent  instead  of  the  individuals  composing  it,  may  be 
cured  by  amendment.     People  ex  rel.  Ryan  v.  Civil  Service,  etc., 

17  Abb.  N.  c.  ^^. 

As  the  mayor,  aldermen,  and  commonalty  of  the  city  of  New 
York  owe  to  the  State  no  duty  in  respect  to  the  payment  of  a 
tax,  it  would  be  error  for  the  attorney-general  to  make  them 
parties  to  a  proceeding  by  mandamus  against  the  comptroller  of 
said  city,  nor  are  they  entitled  to  be  made  parties  on  their  own 
request.  People  v.  Myers,  20  St.  Rep.  272,  50  Hun,  479,  afifirmed, 
112  N.  Y.  676. 

Mandamus  will   not  lie  against   a    foreign   corporation  except 


MANDAMUS.  20J 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


in  so  far  as  it  is  specially  authorized  by  statute  ;  i.  c.  it  will  not  lie 
against  a  foreign  corporation  as  such,  but  only  against  its  trans- 
fer agent  to  compel  him  to  show  the  books,  for  the  agent  only  is 
thus  amenable  under  Laws  1842,  chap.  165.  People  ex  rcl.  Field 
V.  N.  P.  R.  R.  Co.,  18  J.  &  S.  546 ;  People  ex  rel.  Hateh  v.  L.  S.  & 
M.  S.  R.  R.  Co.,  II  Hun,  4.  When  it  is  uncertain  which  of  two 
officials  is  the  proper  respondent  in  mandamus  and  both  of  them 
appear  to  be  authorized  to  do  the  acts  required  to  be  done,  the 
writ  may  be  directed  to  both  of  them  as  respondents.  People  ex 
rel.  Harrhnan  v.  Paton,  20  Abb.  N.  C.  199.  In  general,  the  writ 
lies  to  the  person  or  body  whose  legal  duty  it  is  to  perform  the 
required  act,  as  where  a  corporation  is  required  by  law  to  do  a 
particular  act,  the  mandamus  is  addressed  to  that  organ  of  the 
corporation  which  is  to  perform  it.  It  lies  to  the  body  upon 
whom  the  duty  of  "  putting  the  necessary  machinery  in  motion  " 
is  imposed.  People  ex  rel.  Market  Commissioners  v.  Common 
Council,  3  Abb.  Ct.  of  App.  Dec.  506 ;  s.  C.  3  Keyes,  86  ;  People 
ex  rel.  v.  Throop,  12  Wend.  183. 

It  has  been  held  that  a  mandamus  will  be  issued  against  an  of- 
ficial without  regard  to  the  expiration  of  his  office  ;  that  the  pro- 
ceeding is  against  the  respondent  as  an  official,  not  personally, 
and  his  successor  must  obey  the  writ.  People  ex  reL  Case  v. 
Collins,  19  Wend.  58.  But  it  has  been  held  that  a  commissioner 
of  highways  elect  cannot  be  substituted  as  successor  in  office  in 
proceedings  by  mandamus  had  against  his  predecessor.  People 
ex  rel.  Van  Valkenbiirgv.  Commissioners  of  Highways,  3  How.  Pr. 
56  (Special  Term,  1847);  see,  also,  People  ex  rel.  Twenty-Third 
St.  R.  R.  Co.  V.  Squire,  1 10  N.  Y.  666.  Though  it  is  held  that  any 
change  in  the  personnel  of  a  board  to  which  mandamus  has  been 
issued  may  be  disregarded.  People  ex  rel.  Slater  v.  Smith,  83  Hun,_ 
437.  A  person  acting  solely  for  the  benefit  of  others,  and  with  no 
personal  interest,  is  not  a  proper  relator  in  mandamus.  People  ex 
rcl.  Simon  v.  Mayor,  20  Misc.  190.  As  to  the  joinder  of  parties  as 
relators,  sqq  People  ex  rcl.  v.  Supervisors  of  Ulster,  17  Weekly  Dig. 
139.  When  the  application  for  the  writ  of  mandamus  is  made  to 
secure  some  personal  or  private  redress,  the  relator  or  applicant 
must  be  shown  to  have  a  personal  right  in  obtaining  it  before  the 
writ  can  be  directed  to  issue,  but  where  the  act  sought  to  be 
performed  affects  the  public  interests  generally  and  all  citizens 
are  equally  concerned  in  securing  its  performance,  any  citizen,  a- 


208  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


taxpayer,  has  a  right,  by  virtue  of  his  interest  in  the  maintenance 
of  the  government,  to  institute  proceeding  by  mandamus. 
People  ex  rcl.  Wright  v.  Common  Council  of  Buffalo,  16  Abb.  N. 
C.  116.  Tiie  court  says:  "  The  authorities  in  this  and  several 
other  States,  and  those  also  of  the  Court  of  King's  Bench  in  Eng- 
land, have  gone  very  far  in  supporting  this  proposition.  In  fact, 
the  utmost  limit  of  judicial  interference  has  been  reached  for  the 
purpose  of  sustaining  the  right  of  private  persons  to  insist  upon 
the  performance  of  public  duties  by  public  officers."  People  ex 
rel.  Case  v.  Collins,  19  Wend.  58.  Thus  any  citizen  of  a  village 
may  have  mandamus  to  compel  the  trustees  to  appoint  and  or- 
ganize a  board  of  health  when  they  are  required  .so  to  do  by 
statute.     People  ex  rel.  Boltaer  v.  Dalj,  37  Hun,  466. 

Prior  to  the  case  of  People  ex  rel.  Case  v.  Collins,  19  Wend.  64, 
supra,  there  was  no  settled  practice  in  this  State  on  this  subject, 
and  the  rule  there  adopted,  though  differing  from  that  which 
prevails  in  many  of  the  other  States,  is  a  reasonable  one,  and  in 
many  instances  actually  necessary  to  obtain  speedy  redress  for 
wrongs  affecting  the  public  interest.  People  ex  rel.  Stephens  v. 
Halsey,  37  N.  Y.  347. 

Upon  the  refusal  of  a  county  treasurer  to  issue  his  warrant  for 
the  collection  of  a  tax,  etc.,  any  citizen  having  a  common  interest 
in  the  collection  of  the  tax  may  have  mandamus  to  compel  him 
to  do  so.  People  ex  rel.  Stephens  v.  Halsey,  37  N.  Y.  346.  The 
court  says  that,  in  this  case,  inasmuch  as  the  people  themselves 
are  the  plaintiffs  in  the  proceeding  by  mandamus,  it  is  not  of 
vital  importance  who  the  relator  should  be,  so  long  as  he  does 
not  officiously  intermeddle  in  a  matter  with  which  he  has  no 
concern.  The  office  which  a  relator  performs  is  merely  the  insti- 
tuting a  proceeding  in  the  name  of  the  people  and  for  the  gen- 
eral benefit.  The  rule,  therefore,  as  it  is  .sometimes  stated,  that 
a  relator  in  a  writ  of  mandamus  must  show  an  individual  right  to 
the  thing  asked,  must  be  taken  to  apply  to  cases  where  an  indi- 
vidual interest  is  alone  involved,  and  not  to  cases  where  the  in- 
terest is  common  to  the  whole  community. 

In  the  Matter  of  Whitney,  3  Supp.  838,  it  was  held  that  man- 
damus may  be  had  by  any  citizen  or  class  of  citizens,  to  enforce 
that  part  of  the  law  requiring  policemen  and  officers  of  the  police 
to  enforce  the  law  requiring  persons  licensed  to  sell  intoxicating 
liquors,  to  keep  their  places  closed   during  hours  forbidden  by 


MANDAMUS.  209 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


statute.  A  citizen  is  a  proper  relator  to  compel  a  board  of  super- 
\'isors  of  counties  to  meet,  as  required  by  statute,  and  divide  their 
respective  counties  into  so  many  assembly  districts  as  they  were 
entitled  to.  People  ex  rel.  Pond  v.  Supervisors  of  Monroe  County, 
47  St.  Rep.  457,  reversed  on  other  grounds,  47  St.  Rep.  702. 
No  personal  interest  in  a  relator  is  essential  in  order  to  enable 
him  to  have  mandamus  compelling  a  board  of  supervisors  to 
vacate  their  order  directing  the  payment  of  a  claim  not  author- 
ized by  law.  People  ex  rel.  Laiurence  v.  Supervisors  of  West- 
eJiestcr,  1 1  Hun,  308. 

Any  citizen  of  a  county  has  a  sufificient  interest  in  the  publica- 
tion of  the  laws  to  enable  him  to  be  a  relator  in  a  mandamus  to 
compel  a  board  of  supervisors  to  designate  two  newspapers  for 
such  publication  as  required  by  statute.  People  ex  rel.  Waller  v. 
Supervisors,  56  N.  Y.  252.  Any  citizen  of  the  State  may  apply 
as  relator  for  a  writ  of  mandamus  to  compel  a  railroad  com- 
pany to  construct  fences  and  cattle-guards,  as  required  by  stat- 
ute, when  it  has  failed  to  do  so.  People  ex  rel.  Garbutt  v.  R.  & 
S.  L.  R.  Co..,  14  Hun,  374.  A  private  citizen  may  be  relator  in 
proceedings  by  mandamus  to  compel  a  board  of  supervisors  to 
convene  and  divide  the  county  into  assembly  districts,  when,  by 
their  failure  to  do  so,  the  district  where  the  relator  resided  was 
deprived  of  just  representation.  Peo.  ex  rel.  Baird  v.  Super- 
visors of  Kings  Co.,  ete.,  138  N.  Y.  115.  A  citizen  of  a  county 
who  is  put  to  inconvenience  by  reason  of  the  non-repair  of  a  bridge 
may  be  relator  in  proceedings  by  mandamus  to  compel  the 
board  of  supervisors  to  repair  the  bridge,  when  they  are  re- 
quired to  keep  the  same  in  repair.  People  ex  rel.  Keene  v. 
Supervisors,  142  N.  Y.  277. 

Query  as  to  whether  a  statutory  provision  directing  a  munici- 
pal corporation  to  employ  a  designated  class  of  labor  in  order 
that  the  service  may  be  well  performed,  gives  the  persons 
answering  the  designation  a  right  to  act  as  relators  and  compel 
the  municipal  body  by  mandamus  to  employ  them.  People  ex 
rel.  Francis  v.   Couivion  Council,  78  N.  Y.  38. 

The  writ  of  mandamus  is  a  State  writ  and  should  be  issued  in 
the  name  of  the  people  of  the  State,  but  where  it  is  awarded 
upon  the  application  of  a  private  person,  it  must  show  that  it  was 
issued  on  the  relation  of  that  person.  Code  of  Civ.  Proc. 
§  1 99 1  ;  People  ex  rel.  Mason  v.  Board  of  Supervisors  of  Way ?ie, 
14 


2IO  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


45  Hun,  6},.  And  being  a  State  writ  and  issuing  in  the  name  of 
the  people,  it  should  not  be  entitled  in  an  action  but  as  a  distinct 
and  separate  proceeding.  Youmans  v.  Terry,  32  Hun,  625. 
An  application  for  mandamus  to  compel  a  street-car  company 
to  run  its  cars  may  be  made  by  any  citizen  of  a  city  in  which 
the  road  is  located.  Loader  v.  Brooklyn  Heights  R.  R.  Co.,  14 
Misc.  208,  35  Supp.  996.  The  crier  of  a  court,  being  in  posses- 
sion of  his  ofifice,  cannot  be  ousted  by  mandamus  against  the 
judge  appointing  him  without  being  made  a  party  to  the  pro- 
ceeding.    Peo.  V.    Wendell,  57  Hun,  362,  10  Supp.  587. 

Not  only  a  municipal  board,  such  as  the  board  of  police,  may 
be  made  respondents  in  proceedings  by  mandamus,  but  also  each 
individual  member  of  such  board  may  be  made  respondents  as 
well  as  the  board  itself,  and  in  such  case  each  member  should 
make  a  return  thereto.  Peo.  ex  rel  McMackin  v.  Board  of 
Police,  46  Hun,  301,  affirmed,  107  N.  Y.  235. 

Where  proceedings  by  mandamus  are  commenced  against  a 
mayor  in  his  official  capacity  and  not  against  him  individually, 
the  proceeding  continues  against  his  successor  in .  office.  In 
determining  whether  the  writ  was  to  operate  upon  the  office 
through  the  incumbent,  or  only  upon  the  incumbent,  the  test 
seems  to  be  whether  the  duty  enjoined  would  be  obligatory  on  the 
successor  in  office.  In  such  a  case,  the  writ  may  issue  against 
the  office  by  name,  without  the  name  of  the  incumbent  appear- 
ing therein,  Peo.  ex  rel.  Wooster  v.  Maker,  64  Hun,  413, 
reversed  on  other  grounds,  141  N.  Y.  330. 

It  has  been  held  that  the  mayor  of  a  city  is  not  a  proper 
party  respondent  in  proceedings  by  mandamus  against  the  audit- 
or and  the  comptroller  of  said  city  requiring  the  latter  to  audit 
and  certify  a  claim,  even  though  the  mayor  would  be  required 
to  sign  the  warrants  upon  the  treasury  after  such  audit.  The 
ground  is  that  the  determination  of  the  amounts  due  upon  said 
claims  by  the  auditor  and  comptroller  precedes  any  duties  im- 
posed upon  the  mayor.  Peo.  ex  rel.  Kings  County  Gas  Co.  v. 
Schieren,  89  Hun,  220.  Where  the  failure  to  perform  the  act 
sought  to  be  coerced  was  on  the  part  of  an  officer  whose  term 
has  expired,  mandamus  may  still  issue  to  his  successor  in  office. 
Peo.  ex  rel.  Dannatt  v.  Comptroller,  yy  N.  Y.  50.  See  as  to 
the  abatement  of  mandamus  proceedings  upon  death  of  party, 
Peo.  ex   rel.    McAllister   v.   Lynch,  68  N.  Y.  473  ;  on  change  ia 


MANDAMUS.  211 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


State  officer.  Peo.  ex  rel.  Broderick  v.  Norton,  156  N.  Y.  136. 
Mandamus  on  behalf  of  the  people  in  their  sovereign  capacity 
can  be  awarded  only  upon  the  application  of  the  attorney- 
general  or  some  district  attorney,  and  the  indorsement  upon 
the  writ  must  show  that  it  was  issued  upon  such  application. 
Pea.  ex  rel.  Sherwood  v.  Board  of  Canvassers,  129  N.  Y.  373. 
When  the  proceeding  is  one  to  enforce  a  civil  remedy  only  and 
the  people  are  present  merely  as  the  formal  party,  their  presence 
is  due  to  the  survival  of  a  form  which  has  long  since  ceased  to 
have  any  significance  or  utility.  The  real  party  in  interest  is  the 
relator  in  such  a  case,  and  if  he  should  die,  the  proceeding  will 
abate.  People  ex  rel.  Sherwood  v.  Board  of  Canvassers,  129  N.  Y. 
373,  High's  Extraordinary  Legal  Remedies,  §  430  et  seq. 

Any  elector  may  be  relator  to  compel  the  State  board  of  can- 
vassers to  disregard  a  paper  purporting  to  be  a  return  of  a  board 
of  canvassers,  and  which  does  not  give  the  results  of  a  proper 
legal  canvass,  and  to  consider  only  a  proper  return,  at  least  in  a 
case  where  the  interested  candidate  is  dead.  People  ex  rel.  Daley 
V.  Rice,  129  N.  Y.  453. 

By  chapter  25  of  the  General  Laws,  §  31,  the  State  Board  of 
Health  or  its  president  or  secretary,  or  a  local  board  of  health  or 
its  president  or  secretary,  or  any  citizen  of  full  age  resident  of 
the  municipality,  may  compel  by  mandamus  the  performance  of 
any  act  or  duty  required  by  the  Public  Health  Law.  Where 
the  matter  does  not  concern  the  general  public  but  is  to  pro- 
mote certain  private  rights,  the  personal  interest  of  the  relator 
in  the  matter  in  controversy  must  be  clearly  shown  to  en- 
title him  to  maintain  the  proceeding.  Thus,  the  rector  of  a 
church  is  held  to  have  no  such  interest  in  its  consolidation  with 
another  corporation  as  to  enable  him  to  prosecute  as  relator, 
when  he  has  never  been  authorized  by  a  board  of  vestry- 
men so  to  do.  St.  Stephen  s  ClmrcJi  Cases,  25  Abb.  N.  C.  247. 
But  the  rector  of  a  church  is  a  proper  relator  in  mandamus  to 
compel  the  vestrymen  to  attend  a  duly  called  meeting  from 
which  they  intentionally  absent  themselves  and  which  cannot  be 
held  in  their  absence.  People  ex  rel.  Kenny  v.  Winans,  29  St.  Rep. 
651,  9  Supp.,  249.  It  seems  it  is  not  a  valid  objection  that  the 
supervisors  of  several  towns  join  as  relators  in  a  writ  of  mandamus. 
People  ex  rel.  v.  Board  of  Supervisors  of  Ontario,  85  N.  Y.  326; 
see,  also,  s.  c.  17  Hun,  505. 


212  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


The  attorney-general  may  apply  for  mandamus  only  to  protect 
some  public  right  or  to  secure  some  public  interest,  and  where 
private  interests  only  are  involved  the  application  by  the  attornej/- 
general  is  not  proper  ;  in  such  a  case  the  writ  must  be  applied 
for  by  the  private  parties  interested,  who  must  be  relators,  and 
where  the  writ  is  applied  for  by  the  attorney-general,  the  court 
granting  it  must  be  able  to  see  from  the  undisputed  facts  alleged 
that  it  is  asked  to  protect  some  public  right.  People  v.  R.  W.  &  O. 
R.  R.  Co.  103  N.  Y.  105.  The  death  of  one  co-partner  among  re- 
lators does  not  abate  the  alternative  writ  after  issue  joined 
thereon.  People  ex  rel.  Wit  her  bee  v.  Siipvrs.,  70  N.  Y.  228. 
A  writ  of  mandamus  may  properly  be  directed  to  the  cashier 
of  a  bank  to  compel  him  to  permit  a  director  to  inspect  the  dis- 
count book,  and  it  need  not  be  directed  to  the  board  of  directors  ; 
the  rule  being  that  the  writ  should  issue  to  him  who  has  to  do 
the  thing  required  to  be  done,  but  it  seems  that  there  would  be 
no  impropriety  in  issuing  the  writ  to  the  board  of  directors  as 
well.     Peo.  v.  Throop,  12  Wend.  187. 

Sub.  2.  The  Petition  or  Affidavit. 

The  affidavit  upon  which  the  writ  is  granted  must  not  be  en- 
titled in  a  cause.  Haight  v.  Turner,  2  Johns.  371  ;  People  v.  Co}n- 
mon  Pleas,  i  Wend.  291  ;  People  v.  Sage,  2  How.  59;  People  v. 
Dikeman,  7  id.  124.  See  Ex  parte  La  Farge,  6  Cow.  61.  The 
cause  may  take  its  title  on  granting  of  the  order  for  the  writ. 
People  V.  Sage,  2  How.  60.  The  affidavits  must  show  the  facts. 
I  Johns.  Cas.  134;  3  T.  R.  575.  The  facts  should  be  set  forth 
with  precision.     5  T.  R.  466  ;  2  Johns.  Cas.  211. 

By  §  2076  of  the  Code  of  Civil  Procedure,  it  is  provided 
that  the  altcriiative  writ  of  mandamus  as  to  the  joinder  therein 
of  two  or  more  grievances,  the  command  of  the  writ,  etc.,  are  sub- 
ject to  the  provisions  of  the  Code  respecting  the  statement  in  a 
complaint  of  the  facts  constituting  a  cause  of  action,  etc.,  and 
likewise  the  affidavits  upon  which  an  application  for  the  writ  is 
founded  must  comply  in  form  to  the  rules  of  pleading  ;  and  it 
has  in  fact  been  held,  in  People  ex  rel.  Del  Mar  v.  .S7.  L.  cV  .V.  F. 
R.  Co.,  47  Hun,  544,  14  St.  Rep.  885,  that  these  preliminary 
affidavits  are  in  the  nature  of  a  comi)laint. 

A  relator,  to  entitle  himself  to  the  writ,  must  show  that  he  is 
legally  and  equitably  entitled  to  some  right  properly  the  subject 


MANDAMUS.  213 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 

of  the  writ,  and  that  it  is  legally  demandable  from  the  person  to 
whom  the  writ  is  to  be  directed,  and  also  that  such  person  still  has 
it  in  his  power  to  perform  the  duty  required  ;  and,  moreover,  he 
must  show  affirmatively  that  whatever  is  required  to  be  done  by 
him  as  a  condition  precedent  to  the  right  demanded  has  been 
performed  by  him.  The  People  ex  rel.  Stevens  v.  Hayt,  66  N.  Y. 
607,  reversing  7  Hun,  39.  He  must  show  facts  which  give  him 
a  strict  legal  right  to  the  writ  ;  thus,  if  the  facts  shown  should 
leave  him  a  remedy  at  law,  the  writ  will  be  denied.  People  ex 
rel.  Lunney  v.  Campbell,  72  N.  Y.  498  ;  see,  also.  People  ex  rel. 
McMakin  v.  Board  of  Police,  107  Y.  239,  11  St.  Rep.  412.  He 
is  bound  to  show,  as  the  foundation  for  the  proceeding,  that 
the  specific  act  sought  to  be  coerced  is  the  duty  of  the  person 
against  whohi  the  writ  is  directed,  and  that  such  person  has  no 
discretion  as  to  its  exercise.  People  ex  rel.  Allen  v.  Murray, 
2  Misc.  155,  23  Civ.  Pro.  71,  affirmed  without  opinion,  138 
N.  Y.  635. 

Where  tender  must  be  shown  on  the  part  of  a  relator,  it  must 
be  shown  to  be  a  full  tender  of  present  performance  ;  if  the  tender 
was  conditional,  the  writ  will  be  denied.  Matter  of  McGrath,  56 
Hun,  78,  29  St.  Rep.  704.  The  relator  must  show  some  present 
disregard  of  duty  on  the  part  of  the  respondent  ;  mandamus  will 
not  be  granted  where  it  is  shown  that  the  respondent  *'  is  about  " 
to  disregard  his  duty.  People  ex  rel.  Sayles  v.  Fitzgerald,  37  St. 
Rep.  540,  13  Supp.  663,  affirmed,  128  N.  Y.  620.  The  affidavit 
must  not  contain  scandalous  matter,  or  it  may  be  stricken  out 
by  the  court  on  its  own  motion.  People  ex  rel.  Allen  v.  Murray, 
22  Supp.  1051,23  Civ.  Pro.  53. 

It  has  been  held  that  the  relator  must  not  ask  for  more  than 
he  is  entitled  to,  or  the  writ  will  be  denied.  People  ex  rel.  Ket- 
tcltas  V.  Cady,  2  Hun,  225  ;  People  ex  rel.  Byrnes  v.  Greene,  64 
Barb.  162.  But  see  People  ex  rel.  Keene  v.  Supervisors,  142  N.  Y. 
277,  reversing  71  Hun,  97,  where  it  was  held  that  the  court  may 
issue  a  peremptory  writ  on  the  final  determination  of  the  alter- 
native writ,  even  though  the  relator  asks  too  much,  or  mistakes 
to  some  extent  the  relief  to  which  he  is  entitled  ;  in  awarding  the 
peremptory  writ  the  court  may  mould  it  according  to  the  just 
rights  of  all  the  parties. 

The  affidavits  upon  which  an  application  for  a  peremptory  writ 
is  made  must  all  be  served  upon  the  respondent,  or  they  cannot 


214  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


be  considered  upon  the  motion  if  objection  is  made  thereto. 
People  ex  rel.  Del  Mar  w.  St.  L.  &  S.  F.  R.  Co.  47  Hun,  544,  14 
St.  Rep.  885.  It  may  be  noted  here  that  the  facts  which  it  is 
necessary  to  state  in  the  petition  for  an  alternative  writ  should 
also  be  set  forth  in  the  writ  itself,  for  the  court  cannot  look  to 
the  petition  for  the  facts  which  should  have  been  stated  in  the 
writ  itself.  People  ex  rel.  Egan  v.  Columbia  Club,  20  Civ.  Pro. 
323.    15  Supp.  821.  But  where  the  allegations  of  the  petition 

upon  which  the  alternative  writ  was  granted  are  incorporated 
into  and  made  a  part  of  the  writ,  the  court  held,  upon  appeal, 
that  they  were  to  be  regarded  as  part  of  the  writ  itself  in  a  case 
where  the  respondents  have  not  been  misled,  or  harmed,  and 
took  issue  upon  those  allegations.  Pea.  ex  rel.  WitJierbee  v. 
Supvrs,  79  N.  Y.  236. 

A  petition  for  mandamus  to  a  city  council  to  appoint  to  ofifice 
an  honorabl)^  discharged  soldier  of  the  civil  war  under  the  civil 
service  law,  has  been  held  to  be  fatally  defective  in  not  averring 
that  the  council  knew  that  he  was  an  honorably  discharged  sol- 
dier. In  re  Wortman,  2  Supp.  326,  22  Abb.  N.  C.  143.  It 
seems  that  on  an  application  for  mandamus,  if  the  facts  are 
alleged  to  be  upon  information  and  belief,  the  sources  of  informa- 
tion and  belief  must  be  set  forth  or  the  affidavit  will  be  held  not 
to  prove  the  facts  alleged.  People  ex  rel.  O'Brien  v.  Cruger,  12 
App.  Div.  537. 

Where  the  order  to  show  cause  upon  which  the  peremptory 
writ  is  issued  contains  the  usual  request  "  or  for  other  relief," 
the  Supreme  Court  has  power  to  grant  the  writ  for  any  relief  to 
which  the  relator  is  entitled,  although  it  is  not  specified  in  the 
order  to  show  cause.  Pco.  ex  rel.  Henry  v.  NostraJid,  46  N.  Y.  377. 
The  facts  required  to  be  set  forth  in  an  application  for  man- 
damus are  similar  to  those  required  to  be  set  forth  in  the  alterna- 
tive writ  itself.  This  will  be  fully  treated  under  §  2076.  It 
should  appear  from  the  petition,  that  a  demand  has  been  made 
on  the  defendant  to  do  the  thing  which  he  is  sought  to  be  com- 
pelled to  do,  and  that  he  has  refused  or  neglected  to  do  it. 
Moses  on  Mandamus,  204  ;  /;/  re  Whitney,  3  Supp.  839,  24  St. 
Rep.  968. 

The  affidavit  of  the  respondent,  in  answer  to  the  affidavit  of  the 
relator  moving  for  a  peremptory  writ,  must  state  facts  and  not 
conclusions  of  law,  otherwise  no  issue  of  facts  is  raised.     Matter 


MANDAMUS.  21$ 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


of  Pierce  Butler  &  Pierce  Mfg.  Co.,  62  Hun,  266,  42  St.  Rep. 
568,  16  Supp.  786,  affirmed,  without  opinion,  131  N.  Y.  570. 
When,  upon  a  motion  for  a  peremptory  writ  in  the  first  in- 
stance, every  material  statement  of  fact  in  the  respondent's 
affidavit  is  upon  information  and  beHef,  the  affidavit  will  be  dis- 
regarded. JMattcr  of  Sheehanv.  Trcasr.  Long  Island  City,  w  Misc. 
488,  67  St.  Rep.  277,  33  Supp.  428.  The  alternative  writ  may 
be  granted  witliout  notice.  Peo.  ex  rel.  Fisk  v.  Deverman,  83 
Hun,  183,  64  St.  Rep.  147,  31  Supp.  593,  A  change  in  the  per- 
sonnel of  a  town  board,  since  its  refusal  to  act,  is  no  reason  for 
denying  a  mandamus  where  the  purpose  of  the  writ  is  to  require 
the  board  as  such  to  act,  Peo.  ex  rel.  Slater  v.  Smith,  83  Hun, 
437,  64  St.  Rep.  419,    31  Supp.  749. 

Unspecific  and  indefinite  statements  and  denials  or  statements 
and  denials  upon  information  and  belief  are  worthless  upon  an 
application  for  mandamus.  Matter  of  Guess,  16  Misc.  307,  74 
St.  Rep.  387,  38  Supp.  91  ;  Matter  of  Freel,  73  St.  Rep.  331, 
38  Supp.  143. 

Where  one  sought  to  enforce  a  preference  for  an  office  under 
the  Veteran  Law  (Laws  1894,  chap.  916),  and  it  does  not  appear 
from  his  affidavit  that  he  was  a  discharged  soldier  and  as  such 
entitled  to  preference,  and  the  opppsing  affidavit  stated  that  his 
application  for  the  office  contained  no  such  averment,  it  was  held 
that  the  relator  did  not  make  out  a  case  either  for  a  peremptory 
or  for  an  alternative  writ.  Peo.  ex  rel.  v.  Trustees  Cokocton,  17 
Misc.  654. 

Precedent  for  Affidavit. 

Ulster  County,  ss.  .• 

Louis  Bevier,  of  the  town  of  Marbletown,  in  the  county  of  Ulster, 
being  duly  sworn,  says  that  he  is  the  supervisor  of  said  town,  and  acting 
as  such. 

That  at  the  annual  session  of  the  board  of  supervisors  of  Ulster 
County  in  1886,  which  has  not  yet  closed,  the  said  board  so  equalized 
the  value  of  the  real  estate  in  said  county,  and  especially  of  the  town  of 
Marbletown,  as  to  do  great  injustice  to  said  town  ;  that  an  appeal  has 
been  taken  by  said  town  from  such  equalization  to  the  State  assessors ; 
that  on  the  29th  day  of  November,  1886,  a  resolution  was  adopted  by 
said  board,  a  copy  of  which  is  hereto  annexed,  in  and  by  which  the 
sum  of  $10,000  was  directed,  levied,  and  raised  on  the  entire  county  of 
Ulster  for  the  payment  of  the  expenses  of  the  said  appeal,  in  opposition, 
and  contrary  to  and  against  the  interests  of  the  said  town,  and  not  for 
the  benefit  or  in  the  interest  of  the  entire   county,  but  for  the  sole  use 


2l6  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


and  benefit  of  the  towns  in  said  county  which  may  be  benefited  by  the 
said  equalization  as  appears  in  and  by  said  resolution.  Wherefore  de- 
ponent prays  that  a  mandamus  issue  out  of  this  court  directing  and 
commanding  the  said  board  of  supervisors  of  Ulster  County  to  strike 
said  sum  of  $10,000  from  the  assessment-roll,  so  far  as  it  relates  to 
and  affects  the  town  of  Marbletown,  and  that  they  shall  not  levy  any 
part  of  the  same  on  the  said  town  of  Marbletown,  and  to  modify  said 
resolution  so  as  that  no  part  of  said  sum  shall  be  so  levied,  or  for  such 
other  or  further  order  as  to  the  court  shall  seem  just. 

LOUIS  BEVIER. 
Subscribed  and  sworn  to  before  ) 
me,  December  2,  1886.  ) 

HENRY  E.  Mckenzie, 

Notary  Public. 

Another  Precedent. 

Ulster  County,  ss.  : 

Michael  Dunn,  being  duly  sworn,  says  he  is  the  supervisor  of  the 
town  of  Kingston,  That  upon  application  of  the  attorney  for  persons 
holding  claims  against  the  old  town  of  Kingston,  before  its  division  on 
indebtedness  which  accrued  before  the  division  of  that  town,  this  de- 
ponent called  a  meeting,  pursuant  to  statute,  of  the  officers  authorized 
to  apportion  the  debts  of  said  old  town  between  the  towns  of  Kingston, 
Ulster,  and  Woodstock,  for  the  purpose  of  making  such  apportionment. 
That  a  copy  of  said  call,  with  proof  of  service  thereof  on  the  supervisors 
and  overseers  of  the  poor  of  the  towns  of  Ulster  and  Woodstock,  is 
hereto  annexed.  That  said  notice  was  served  on  Michael  Britt,  over- 
seer of  the  poor  of  the  town  of  Kingston,  by  deponent  on  the  25th  day 
of  November,  1885.  That  at  the  time  and  place  mentioned  in  said 
notice,  to  wit,  at  the  house  of  Bernard  Johnson  in  the  town  of  Ulster,  on 
the  30th  day  of  November,  1885,  at  ten  o'clock  in  the  forenoon,  this 
deponent,  supervisor  of  said  town  of  Kingston,  and  Michael  Britt,  over- 
seer of  the  poor  of  said  town  of  Kingston,  appeared  and  attended  for 
the  purpose  of  taking  proper  action  pursuant  to  said  call.  That  the 
supervisor  of  the  town  of  Ulster,  Lorenzo  Dunnegan,  and  Martin  E. 
Hendricks,  the  overseer  of  the  poor  of  the  said  town,  and  Albert  Vos- 
burgh,  supervisor  of  the  town  of  Woodstock,  and  Andrew  Eltinge, 
overseer  of  the  poor  of  said  town  of  Woodstock,  failed  and  neglected 
to  appear  at  the  said  place  of  meeting,  although  deponent  and  said 
Michael  Britt  waited  at  said  place  for  more  than  an  hour  after  the  time 
named  in  said  notice  or  call. 

Deponent  is  informed  by  Bernard  Johnson,  at  whose  house  said 
meeting  was  called,  that  said  supervisors  and  overseers  of  the  poor  of 
said  towns  of  Ulster  and  Woodstock  did  not  attend  at  all  during  that 
day,  nor  at  any  time  pursuant  to  said  call  or  notice. 

That  deponent  is  informed  by  said  Lorenzo  Dunnegan  that  they  do 
not  intend  to  appear  or  act  in  the  matter.  That  said  town  of  Kmgston 
was  divided  in  the  year  1879,  ^  P''^''^  thereof  remaining  as  the  town  of 


MANDAMUS.  21;^ 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


Kingston,  and  a  part  of  the  balance  thereof  erected  into  the  town  of 
Ulster,  and  a  part  annexed  to  the  town  of  Woodstock. 

That  the  abstract  hereto  annexed  is  an  abstract  of  the  claims  audited 
against  the  said  old  town  of  Kingston  before  its  division  and  remaining 
unpaid,  and  shows  debts  owing  by  said  old  town,  as  deponent  believes, 
to  the  amount  of  $20,000  and  upwards. 

{Jurat.)  MICHAEL  DUNN. 

Sub.  3.  The  Writ  and  Practice  on  Moving   Therefor. 

Denials  and  affirmative  allegations  made  expressly  and  solely 
upon  information  and  belief,  where  there  is  no  disclosure  by 
affiant  of  the  sources  of  his  information,  or  the  grounds  of  his 
belief,  do  not  put  in  issue  positive  allegations  in  the  affidavit  of 
the  moving  party  upon  an  application  for  a  peremptory  manda- 
mus, excepting  cases  where  a  public  officer  or  other  party  pro- 
ceeded against  cannot  positively  have  any  knowledge  of  the  sub- 
ject-matter as  based  upon  the  communication  from  others. 
Peo.  ex  rel.  Ran  v.  York,  31  App.  Div.  527,  52  Supp.  401,  86  St. 
Rep.  401.  On  the  return  of  the  order  to  show  cause,  allegations 
of  the  petition  and  moving  papers  which  are  not  denied  must  be 
taken  as  true.  Pco.  ex  rel.  Boivers  v.  Dalton,  23  Misc.  294,  50 
Supp.  1028,  84  St.  R.  1028. 

A  demand  for  a  peremptory  mandamus  admits  the  truth  of 
answering  affidavits.  Peo.  ex  rel.  Peck  v.  Tozvn  Bd.  of  Salina,  27 
App.  Div.  476,  50  Supp.  533,  84  St.  Rep.  533.  The  object  of 
the  peremptory  writ  of  mandamus  is  not  to  determine  contro- 
versies but  simply  to  enforce  a  clear  specific  legal  right,  when 
such  right  depends  only  upon  questions  of  law.  Peo.  ex  rel. 
Hoyt  V.  Board  of  Trustees,  19  Misc.  673. 

The  peremptory  writ  can  only  be  issued  upon  motion  when 
the  applicant's  right  depends  upon  questions  of  law,  therefore,  in 
considering  whether  the  applicant  is  entitled  to  the  peremptory 
writ,  any  averments  in  his  papers  which  are  denied  in  the  oppos- 
ing affidavits,  must  be  disregarded,  and  the  facts  of  the  affidavits 
assumed  to  be  true.  Peo.  ex  rel.  O'Brien  v.  Cruger,  12  App.  Div. 
537.  After  the  proof  is  all  in  and  it  appears  that  no  material  fact 
is  in  dispute,  and  the  right  of  the  applicant  to  the  writ  depends 
upon  the  decision  of  questions  of  law,  the  peremptory  writ  may 
issue  and  there  is  no  need  of  the  alternative  writ.  People  ex  rel 
Bantel  v.  Morgan,  20  App.  Div.  50. 

Upon   motion  for  a   peremptory  writ  it   can  only  be   granted 


2i8  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


when  the  right  depends  solely  on  questions  of  law,  and  if  any 
•disputed  question  of  law  is  presented,  the  court  must  deny  the 
motion.     People  ex  rel.  Canavan  v.  Collins,  20  App.  Div.  342. 

Precedent  for  Order  to  Show  Cause  why  Peremptory  Writ 
should  not  Issue. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house  in  the 

city  of  Albany,  December  i,  1884: 
Present : — Hon.  Charles  R.  Ingalls,  Justice. 


The  People  of  the  State  of  New  York 

agst. 

The   Board   of    Supervisors   of    the    County  of 
Ulster. 


36  Hun,  491. 


Upon  the  annexed  petition  of  I.  H.  Maynard,  deputy  attorney-gen- 
eral of  the  State  of  New  York,  let  the  above-named,  the  board  of  super- 
visors of  the  county  of  Ulster,  or  its  attorneys,  show  cause  at  a  Special 
Term  of  the  Supreme  Court  to  be  held  in  and  for  the  county  of  Ulster, 
at  the  court-house  in  Kingston,  N.  Y.,  on  the  3d  day  of  December,  1884, 
at  one  o'clock  in  the  afternoon  of  said  day,  why  a  peremptory  writ  of 
mandamus  should  not  issue  out  of  and  under  the  seal  of  this  court, 
directed  to  the  above-named  board  of  supervisors  of  the  county  of 
Ulster,  requiring  the  said  board  of  supervisors  thereafter  to  forthwith 
raise  by  taxation  upon  the  taxable  property  situated  in  the  said  county 
of  Ulster,  State  of  New  York,  in  the  same  manner  as  other  State  taxes 
are  raised,  Sn  amount  sufficient  to  pay  the  indebtedness  of  said  county 
mentioned  in  the  said  affidavits  annexed,  to  the  State  of  New  York, 
and  why  such  other  and  further  relief  should  not  be  accorded  in  the 
premises  as  may  be  just,  and  let  service  of  this  order  of  less  than  eight 
days,  to  wit,  on  or  before  the  2d  day  of  December,  1884,  be  deemed 
sufficient,  cause  therefor  appearing  in  said  petition  annexed. 

Dated  Albany.  December  i,  1884. 

C.    R.    INGALLS, 

Justice  Supreme  Court. 

Alternative  Writ  in  First  Instance. 

To  the  People  of  the  State  of  New  York,  on  the  relation  of  Patrick  Casey, 
William  Ryan,  and  James  Parslow,  to  Lorenzo  Dunnegan, 
Supervisor,  and  Martin  E.  Hendricks,  Overseer  of  the  Poor  of  the 
To7vn  of  Ulster,  Albert  Vosburgh,  Supervisor,  and  Andrew 
Elting,  Overseer  of  the  Poor  of  the  Town  of  Woodstock,  and 
Michael  Dunn,  Supervisor,  and  Michael  Britt,  Overseer  of  the 
Poor  of  the  Tozvn  of  Kingston  : 
AVhereas,  It  appears  uu  the  relation  of  Patrick  Casey,  William  Ryan, 


MANDAMUS.  219 


Art.  4.      Peremptory  Writ  and  Return  Thereto. 


and  James  Parslow,  that  they  are  the  owners  and  holders  of  certain 
claims  against  the  old  town  of  Kingston,  as  it  existed  previous  to  the 
division  of  the  town  in  1879,  which  said  claims  were  audited  by  the 
board  of  town  auditors  of  said  town,  and  are  valid  and  subsisting 
claims  against  said  town,  and  that  the  towns  of  Ulster  and  Kingston 
have  been  formed  from  said  town  of  Kingston,  and  a  portion  thereof 
annexed  to  the  town  of  Woodstock,  and  that  the  supervisors  of  said 
towns  and  overseers  of  the  poor  thereof  have  never  met  or  apportioned 
the  debts  owing  by  said  town  of  Kingston  as  it  existed  before  the  divi- 
sion. That  a  call  was  made  by  the  supervisor  of  the  town  of  Kingston 
for  a  meeting  for  that  purpose,  and  that  the  supervisors  and  overseers 
of  the  poor  of  the  towns  of  Ulster  and  Woodstock  failed  to  appear  at 
the  time  and  place  mentioned,  due  notice  thereof  having  been  given 
them  : 

Now,  therefore,  we  command  you  that  you  and  each  of  you  meet  at 
the  house  of  Bernard  Johnson,  in  the  town  of  Ulster,  on  the  loth  day 
of  December,  1885,  at  ten  o'clock  in  the  forenoon  of  that  day,  and  then 
and  there  proceed  to  apportion  the  debts,  owing  by  the  town  of  King- 
ston, as  it  existed  before  the  division  thereof,  between  the  towns  of 
Ulster,  Kingston,  and  so  much  of  Woodstock  as  is  liable  therefor  by 
reason  of  having  been  set  off  from  said  old  town  of  Kingston  and  an- 
nexed to  said  town  of  Woodstock,  and  that  you  complete  such  appor- 
tionment and  make  and  file  a  certificate  thereof,  and  furnish  a  copy  of 
the  same  to  relator's  attorneys  on  their  request  before  the  12th  day  of 
December,  1885,  and  in  what  manner  this,  our  command,  is  executed, 
make  appear  to  our  Supreme  Court  at  the  City  Hall  in  the  city  of 
Kingston,  on  the  12th  day  of  December,  1882,  then  and  there  return- 
ing this  our  writ,  according  to  the  provisions  of  title  2  of  chapter  16, 
Code  of  Civil  Procedure. 

Witness,  Hon.  A.  M.  Osborn,  justice  of  the  Supreme  Court  at  his 
[l.  s.]       chambers  in    the  village   of  Catskill,  on   the  7th   day  of   De- 
cember, 1885.  JACOB  D.  WURTS, 

Clerk. 

F.  L.  &  T.  B.  WESTBROOK, 

Attorneys  for  Relators. 

Indorsed  : — "  Allowed  this  7th  day  of  December,  1885. 

"  A.  M.  OSBORN, 

'■'■Justice  SupretJie  Court.'^ 


220  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


Order  for  Peremptory  Writ.  • 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York,  held 
at  the  chambers  of  Mr.  Justice  Peckham,  in  the  city  of  Albany,  on 
the  8th  day  of  January,  A.  D.  1885  : 

Present : — The  Honorable  Rufus  W.  Peckham,  Justice. 


The  People  of  the  State  of  New  York, 

agst. 

The    Board   of   Supervisors   of    the   County  of 
Ulster. 


36  Hun,  491. 


The  order  to  show  cause  herein  granted  at  Albany  Special  Term,  on 
the  ist  day  of  December,  1884,  and  made  returnable  on  the  2d  day  of 
December,  1884,  at  Kingston  Special  Term,  having  been  continued  from 
said  return  day  until  the  present  term  of  this  court,  and  coming  on  to 
be  heard  ;  after  reading  and  filing  the  petition  of  Isaac  H.  Maynard, 
deputy  attorney-general,  verified  December  i,  1884,  and  said  order  to 
show  cause,  and  the  affidavit  of  F.  B.  Delehanty,  sworn  to  December  i, 
1884,  and  after  hearing  the  Hon.  Isaac  H.  Maynard,  of  counsel  for  the 
plaintiffs,  for,  and  J.  N.  Fiero,  Esq.,  of  counsel  for  said  defendant,  in 
opposition  thereto,  it  is 

Ordered,  that  the  prayer  of  said  petition  be  and  the  same  is  hereby 
granted,  and  that  a  peremptory  writ  of  mandamus  issue  out  of  and  un- 
der the  seal  of  this  court,  directed  to  the  above-named  board  of  super- 
visors of  Ulster  County,  and  requiring  said  board  thereafter  to  forth- 
with raise  by  taxation  upon  the  taxable  property  situated  in  said  county 
of  Ulster,  in  the  same  manner  as  other  State  taxes  are  raised,  the  sum 
of  twenty-eight  thousand  and  ninety-eight  dollars  and  twenty-two  cents 
($28,098.22),  with  interest  thereon  from  December  i,  1884,  said  sum 
being  the  amount  of  the  indebtedness  of  said  county  to  the  State  of 
New  York,  and  pay  the  same  into  the  treasury  of  the  State. 

Said  plaintiffs  are  hereby  allowed  the  sum  of  fifty  dollars  ($50)  as 
their  costs  of  this  proceeding. 

Enter  in  Albany  County.  R.  W.   PECKHAM, 

Justice  Supreme  Court. 

The  recitals  and  statements  in  writ  must  be  suf^cient  to  show 
what  is  required  without  reference  to  the  affidavits.  Commercial 
Bank  of  Albany  v.  Canal  Commissioners,  10  Wend.  25.  But  it 
should  contain  nothing  but  pertinent  allegations.  People  v. 
Ovens/lire,  41  How.  164.  The  alternative  writ  is  in  the  nature  of 
a  pleading.     People  v.  Ransom,  2  N.  Y.  490. 

The  court  will  only  grant  the  writ  of  mandamus  on  the 
attorney-general's  application,  when  it  is  able  to  see,  from  the 
undisputed  facts  alleged,  that  its  issuance  is  necessary  to  protect 


MANDAMUS.  221 


Art.  4.      Peremptory  Writ  and  Return  Thereto. 


some  public  right  or  secure  some  public  interest.  Where  private 
interests  only  are  involved,  the  interested  parties  should  be  the 
relators.  People  v.  Rome,  etc.,  R.  R.  Co.,  3  State  Rep.  39,  103 
N.  Y.  95.  And  it  is  only  where  private  redress  is  had  that  the 
relator  must  show  an  interest,  as  a  citizen  and  taxpayer  may 
compel  the  common  council  to  follow  a  statute.  People  v.  Cojh- 
nion  Council  of  Buffalo,  16  Abb.  N.  C.  96.  Where  a  mandamus 
is  asked  to  compel  repayment  of  taxes  illegally  collected,  it  is 
incumbent  on  the  relator  to  show  taxes  invalid.  People  v.  Brink- 
erJioff,  20  Week.  Dig.  391.  And  whatever  is  required  to  be  done 
by  relator  as  a  condition  precedent  to  the  right  demanded  must 
be  shown  afifirmatively  to  have  been  done.  People  v.  Hayt,  66 
N.  Y.  606.  T|ie  writ  must  be  addressed  to  the  person,  body,  or 
board  who  is  obliged  by  law  to  execute  it,  or  whose  duty  it  is  to 
do  the  thing  required.  People  v.  Common  Council,  3  Keyes,  81  ; 
People  V.  Police  Comnirs,  8  Abb.  41  ;  People  v.  Throop,  12  Wend. 
183.  If  it  is  desired  to  convene  aboard  of  supervisors,  the  writ 
so  ordering  may  be  directed  to  the  chairman  and  clerk.  People 
V.  BrinkerJioff,  68  N.  Y.  259.  Mandamus  to  compel  payment  by 
the  board  of  education  of  the  city  of  New  York  must  be  di- 
rected (before  chap.  210,  Laws  of  1882)  to  the  president  and 
clerk.  People  v.  Neilson,  5  T.  &  C.  367.  Where  a  board  is  not 
incorporated  the  writ  should  be  directed  to  the  individuals  com- 
posing it.  People  V.  Civil  Service  Board,  17  Abb.  N.  C.  64, 
af^rmed,  41  Hun,  287. 

A  seal  is  necessary  to  a  writ  of  mandamus,  and  where  a  writ 
was  served  which  had  no  seal,  it  was  not  sufificient  to  found  pro- 
ceedings for  contempt  when  it  was  not  obeyed.  People  ex  rel. 
Clapp  V.  Fisk,  I  Hun,  464;  s.  c.  3  T.  &  C.  461.  It  should  be' 
tested,  signed,  and  sealed.  i  Burr.  Pr.  95,  97,  2  id.  177.  The 
writ  must  set  forth  with  certainty  the  duty  to  be  performed. 
People  ex  rel.  Clark  v.  Comjnissioners  of  Reading,  i  T.  &  C.  193  ; 
Fish  v.  Weaiheriuax,  2  Johns.  Cas.  215.  But  it  must  not  ask  too 
much  or  it  will  be  denied,  particularly  if  an  alternative  writ  has 
been  issued  setting  out  the  act  required.  People  v.  Supervisors, 
I  Hill,  50  ;  People  v.  Supervisors,  12  Barb.  446;  People  v.  Brennan, 
39  id.  523  ;  People  v.  Baker,  35  id.  105  ;  People  ex  rel.  Byrnes  v. 
Green,  64  id.  162  ;  People  ex  rel.  v.  Cady,  2  Hun,  224.  The  writ 
may  be  amended  as  to  irregularities  at  any  time  before  it  is  re- 
turnable.    People  V.  Baker,  35   Barb.  104;  People  v.  Metropolitan 


222  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


Police  Commissioners,  5  Abb.  241.  It  was  held  in  the  case  first 
cited  that  the  writ  could  not  be  amended  after  return,  but  the 
case  last  above  cited  probably  gives  the  rule  as  it  is  now  held, 
that  the  provisions  with  regard  to  amendments  to  pleadings  must 
be  held  to  extend  to  the  writ ;  more  particularly  is  this  the  case 
since  the  alternative  writ  is  held  to  be  a  pleading.  On  the  same 
point  is  People  v.  Commissioners  of  Highways  of  Fort  Edzvard, 
II  How.  89. 

It  was  held  that  a  peremptory  writ  issued  in  the  first  instance 
could  be  served  on  inspectors  of  election  on  election  day,  not- 
withstanding I.  R.  S.,  6th  ed.,  427,  which  prohibits  the  service  of 
civil  process  on  an  elector  on  election  day.  Pea.  ex  rel.  Loxver  v. 
Donovan,  ^l  Hun,  512,  45  St.  Rep.  142,  18  Supp.  501,  reversed 
on  a  question  of  jurisdiction,  135  N.  Y.  81,  23  Civ.  Pro.  9. 

Precedent  for  Peremptory  Work. 

The  People  of  the  State  of  New  York  to  the  Board  of  Supervisors  of 
Ulster  Coicnty  : 

Whereas,  It  appears  to  us  from  the  petition  of  Isaac  H.  Maynard, 
deputy  attorney-general,  verified  December  i,  1884,  that  the  said  county 
of  Ulster  is  indebted  to  the  State  of  New  York  for  unpaid  certificates 
assigned  by  the  comptroller  to  said  county  in  pursuance  of  the  provi- 
sions of  the  several  acts  of  the  legislature  in  said  petition  referred  to,  in 
the  sum  of  twenty-eight  thousand  ninety-eight  and  22-100  dollars 
($28,098.22),  with  interest  from  December  i,  1884,  and  that,  neverthe- 
less, you  have  unjustly  refused  to  raise  by  taxation,  or  cause  to  be 
raised,  as  required  by  law,  the  amount  due  the  State  by  reason  of  the 
facts  in  said  petition  stated,  as  appears  therefrom,  and  which  petition 
we  have  adjudged  to  be  true  as  appears  to  us  of  record  : 

Now,  therefore,  we  command  you  forthwith  to  raise,  or  cause  to  be 
raised,  by  taxation  upon  the  taxable  property  situated  in  said  county  of 
Ulster,  in  the  same  manner  as  other  State  taxes  are  raised,  the  said  sum 
of  twenty-eight  thousand  and  ninety-eight  and  22-100  dollars  ($28,- 
098.22),  with  interest  thereon  from  December  i,  1884,  and  pay  the 
same  into  the  treasury  of  the  State  of  New  York. 

And  in  what  manner  this,  our  command,  is  executed,  make  appear  to 
our  said  Supreme  Court  at  its  Special  Term,  to  be  held  in  the  city  of 
Albany  on  the  9th  day  of  February  next,  then  and  there  returning  this 
our  writ  according  to  the  provisions  of  title  2,  chapter  16,  of  the  Code 
of  Civil  Procedure. 

Witness,  the  Hon.  Rufus  W.  Peckham,  justice  of  our  said  court, 
[l.  s.]         at  the   City  Hall   in  x\lbany,   this   9th  day  of  January,  A.  D. 
1885.  WM.  D.  STREVELL, 

D.  O'BRIEN,  Clerk. 

Attonicv-  General. 


MANDAMUS.  22J 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


Sub.  4.  The  Return.     §§  2072,  2075,  2073,  2074. 

§  2072.     [Am'd,  1895.]    Writ;  how  returnable. 

An  alternative  writ  must  be  made  returnable  twenty  days  after  the  service  thereof, 
at  the  office  of  the  clerk  of  the  county  designated  therein,  in  which  an  issue  of  fact 
joined  thereupon  is  triable.  A  peremptory  writ  must  be  made  returnable  at  a  Special 
Term  or  a  term  of  the  appellate  division  of  the  Supreme  Court,  designated  therein,  to 
which  application  for  the  alternative  writ  might  have  been  made. 

§  2075.  Motion  to  set  aside  writ. 

An  alternative  writ  of  mandamus  cannot  be  quashed  or  set  aside  upon  motion  for 
any  matter  involving  the  merits.  A  motion  to  set  aside  such  a  writ,  for  any  other 
cause,  or  to  set  aside  or  quash  a  peremptory  writ  of  mandamus,  or  to  set  aside  the 
service  of  either  writ,  must  be  made  at  a  term  whereat  the  writ  might  have  been- 
granted. 

§  2073.  Return  or  demurrer  to  first  writ. 

Where  the  first  writ  of  mandamus  has  been  duly  served,  a  return  must  be  made  to 
the  same,  as  therein  required,  unless  it  is  an  alternative  writ,  and  a  demurrer  thereto 
is  taken.  In  default  of  a  return,  the  person  or  persons  upon  whom  the  writ  was- 
served  may  be  punished,  upon  the  application  of  the  people,  or  of  the  relator,  for  a^ 
contempt  of  court. 

g  2074.     [Am'd,  1895.]    Return,  how  made. 

The  return  to  an  alternative  writ  of  mandamus  must  be  annexed  to  a  copy  of  the 
writ ;  and  must  be  filed,  in  the  office  of  the  clerk  where  it  is  returnable,  within  the- 
time  specified  in  the  writ.  The  return  to  a  peremptory  writ  of  mandamus  must  be 
likewise  annexed  to  a  copy  thereof ;  and  must,  before  the  expiration  of  the  first  day 
of  the  term  at  which  it  is  returnable,  be  either  delivered  in  open  court  or  filed  in  the 
office  of  the  clerk  of  the  county  wherein  the  term  is  to  be  held. 

A  motion  to  quash  or  set  aside  tlie  writ  is  founded  upon  some 
irregularity  or  defect  in  the  writ  or  procedure  anterior  thereto. 
People  V.  Collins,  19  Wend.  ^J  \  Coinniercial  Bank  of  Albany  v. 
Canal  Conunissioners,  10  id.  25  ;  People  v.  Tracy,  i  How.  186. 
The  motion  may  be  made  after  service  of  alternative  writ  and 
before  the  return.  People  v.  Board  of  Supervisors,  14  Barb.  52. 
The  motion  gives  the  defendant  the  benefit  of  a  demurrer  with- 
out resorting  to  that  plea,  since  it  is  in  the  nature  of  a  demurrer, 
and  admits  the  truth  of  the  matters  alleged.  People  v.  College  of 
Physicians  and  Surgeons,  7  How.  290;  People  ex  rel.  v.  Supervis- 
ors, 32  Barb.  473.  Iinmaterial  or  argumentative  matters  or  sur- 
plusage may  be  stricken  out  of  a  return.  People  v.  Commissioners 
of  HigJnvays  of  Fort  Edward,  1 1  How.  89  ;  People  v.  Van  Letiven^ 
8  id.  358  ;  People  v.  Ransom,  2  N.  Y.  496.  An  evasive  return 
might,  under  the  former  practice,  be  quashed  on  motion.  Peo- 
ple \\  White,  II  Abb.  168;  People  v.  Board  of  Police,  ?,  id.  257. 
The  practice  as  to  motion  to  quash  or  set  aside  the  writ  is  con- 
sidered in  People  v.  N.  V.  C  &  H.  R.  R.  R.  Co.,  28   Hun,   543^ 


224  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


In  that  case  the  relators  obtained  an  order  to  show  cause  why  a 
peremptory  writ  of  mandamus  should  not  issue  ;  on  the  return 
day  defendants  appeared  by  counsel  and  moved  to  quash  on  the 
grounds  that  the  moving  papers  did  not  show  facts  sufficient  to 
entitle  the  relator  to  the  relief  asked  ;  thereupon  the  defendant 
was  allowed  to  be  heard,  and  under  objection  to  open  and  close 
the  argument,  and  the  motion  was  granted  to  quash.  It  was 
held  to  be  irregular  to  hear  such  a  motion  before  the  issuing  of 
the  writ,  and  also  to  allow  the  defendant  to  open  and  close  the 
argument,  and  that  the  proper  practice  is  to  move  to  quash  or  set 
aside  after  granting  of  an  alternative  writ,  and  before  return,  treat- 
ing the  motion  substantially  as  a  demurrer.  The  objection  that  the 
supervisors  of  several  towns  joined  as  petitioners  for  a  mandamus 
to  compel  the  board  of  supervisors  to  obey  an  order  of  the  State 
assessors  must  be  taken  by  motion  to  quash  ;  it  does  not  go  to 
the  merits  ;  and  when  the  board  has  answered  and  a  demurrer  to 
the  answer  been  interposed,  the  matter  must  be  heard  on  the 
merits.  People  ex  rel.  v.  Board  of  Supervisors,  85  N,  Y.  323.  It 
is  further  held  in  the  same  case  that  the  ground  above  stated  is 
not  sufificient  ground  to  quash,  and  the  same  principle  is  held  in 
People  ex  rel.  Bray  v.  Supervisors  of  Ulster  County,  17  Week. 
Dig.  138,  where  the  mayor  of  a  city  and  supervisor  of  a  town 
united  as  petitioners. 

It  has  been  held  to  be  no  excuse  for  not  making  the  return 
that  the  writ  has  not  been  returned  and  filed.  People  v.  West- 
chester Common  Pleas,  4  Cow.  73  ;  Root  v.  King,  id.  403.  See 
Snoivdcn  v.  Roberts,  id.  69.  The  time  to  make  the  return  may  be 
extended  by  order,  as  in  case  of  a  pleading.  People  v.  fudges  of 
Ulster  County,  i  Johns.  64;  People  v.  Westchester  Common  Pleas, 
4  Cow.  73  ;  Root  v.  King,  id.  403. 

Where  several  parties  are  made  respondents  to  the  same  pro- 
ceeding in  mandamus,  each  of  such  parties  is  not  only  at  liberty 
but  it  is  his  duty  to  make  a  return.  Pco.  ex  rel.  McMackin  v. 
Board  of  Police,  ^d  Hun,  302.  See  here  the  discussion  on  this 
point.  Under  the  circumstances  of  this  case,  it  was  held  that 
the  admissions  of  two  of  the  commissioners,  even  as  representa- 
tives of  the  board  itself,  were  not  conclusive  against  the  other 
members.  Peo.  ex  rel.  McMackin  v.  Board  of  Police,  46  Hun,  302. 
It  was  held  in  regard  to  a  peremptory  writ,  that  when  the 
order  to  show  cause  whereon  it  was  fjranted  contained  the  usual 


MANDAMUS.  22$ 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


request  "  or  for  other  relief,"  the  court  may  grant  in  the  peremp- 
tory writ  any  relief  to  which  the  relator  is  entitled,  although  not 
specified  in  the  order  to  show  cause,  and  it  was  also  held  that 
the  mandatory  part  of  such  peremptory  writ  need  only  describe 
the  thing  to  be  done  with  reasonable  certainty.  Pco.  ex  rel. 
Henry  v,  Nostranel,  46  N.  Y.  377-380.  Scandalous  matter,  in  an 
affidavit  on  which  an  application  for  a  writ  of  mandamus  is 
founded,  has  been  stricken  out  by  the  court  on  its  own  motion 
{Peo.  ex  rel.  Allen  v.  Murray,  22  Supp.  105 1),  and  scandalous 
matter  in  the  writ  itself  will  probably  be  stricken  out  on  the 
same  principles. 

If,  upon  a  hearing  of  an  application  for  mandamus,  the  re- 
spondent proceeds  without  traversing  the  averments  in  the  afifi- 
davits  presented  by  the  relator,  it  is  equivalent  to  a  demurrer  on 
the  part  of  the  respondent,  and  he  can  succeed  only  by  showing, 
upon  the  facts  stated,  that  the  relator  was  not  in  law  entitled  to 
the  relief  demanded.  Peo.  ex  rel.  Superintendents  of  Poor  of  Os- 
wegatchie  v.  Bd.  Sup.  St.  Laivrenee  Co.,  103  N.  Y.  543. 

The  person,  body,  board,  tribunal,  or  corporation  to  whom  the 
writ  is  directed,  and  upon  whom  it  is  served,  must  make  a  re- 
turn, unless  the  writ  is  quashed  or  the  defendant  performs  the 
act  directed,  and  thus  disposes  of  the  controversy.  Connnereial 
Bank  of  Albany  v.  Canal  Commissioners,  10  Wend.  25.  In  case  of 
an  alternative  writ  of  course  it  would  be  necessary  for  the  de- 
fendant to  appear  and  show  that  the  act  had  been  performed. 
The  question  of  costs,  too,  would  come  up  at  that  time.  In  case 
of  failure  to  make  return,  proceedings  may  be  taken  as  for  con- 
tempt, and  founded  upon  the  usual  papers  for  that  purpose. 

Precedent  for  Notice  of  Motion  to  Quash. 

SUPREME  COURT. 


People  ex  rel.  Charles  Bray  et  al. 

agst. 

Board  of  Supervisors  of  Ulster  County. 


Please  take  notice  that  this  court  will  be  moved   at  a   Special  Term 

thereof,  to  be  held  at  the  City  Hall  in   the   city  of  Albany,  on  the  30th 

day  of  December,  1886,  at  the  opening  of  the  court  on  that  day,  for  an 

order  quashing  and  setting   aside  the   alternative   writ  of  mandamus 

15 


226  MANDAMUS. 


Art.  4.     Peremptory  Writ  and  Return  Thereto. 


herein  granted  December  20,  1886,  or  for  such   other  or  further  reUef 
as  to  the  court  may  seem  just.     Yours,  etc., 

H.  CHIPP,  Jr., 
To  J.  J.  LINSON,  Esq.,  Attorney  for  Defendant. 

Corporation  Counsel,  Attorney  for  Relators. 

Return  of  Compliance  with  Writ. 

(Title.) 

The  return  of  the  defendants  to  the  peremptory  writ  of  mandamus 
granted  herein  on  the  7th  day  of  December,  1885,  shows  to  the  court 
that,  on  the  loth  day  of  December,  1885,  we  met  at  the  time  and  place 
commanded  in  the  writ,  and  proceeded  to  act  in  accordance  with  the 
directions  therein  contained,  and  we  certify  and  return  that  we  appor- 
tioned the  debts  owing  by  the  old  town  of  Kingston  at  the  time  of  its 
division,  in  1879,  ^^  follows,  upon  the  towns  of  Ulster,  Kingston,  and 
so  much  of  Woodstock  as  was  annexed  thereto  from  said  town  of  King- 
ston, as  follows,  viz. :  That  the  town  of  Ulster  be  charged  with  .9096  of 
the  whole  indebtedness  of  said  town  of  Kingston  as  it  existed  at  the 
time  of  such  division ;  that  the  town  of  Kingston  be  charged  with  .053 
per  cent,  of  said  indebtedness,  and  that  the  portion  of  the  town  of 
Woodstock  annexed  to  said  town  from  the  old  town  of  Kingston  be 
charged  with  .0374  per  cent,  thereof. 

We  further  certify  and  return  that  from  the  abstracts  presented  to  us 
we  find  the  indebtedness  of  said  old  town  of  Kingston,  at  the  time  of 
the  division,  to  have  been  the  sum  of  $22,573.38. 

In  witness  whereof  the  members  of  said  board  of  apportionment  have 
hereunto  affixed  their  signatures,  this  loth  day  of  December,  1885. 

(Signed  by  members  individually.) 

M.  SCHOONMAKER, 

Attorney  for  Defendants. 

Form  of  Judgment. 

(Title.) 

A  peremptory  writ  of  mandamus  having  issued  out  of  this  court  after 
due  notice  to  the  defendants  herein,  on  order  of  Special  Term,  granted 
December  5,  1885,  in  and  by  which  these  defendants  were  directed  to 
meet  at  the  house  of  Bernard  Johnson,  in  the  town  of  Ulster,  on  the 
loth  day  of  December,  1885,  then  and  there  to  apportion  the  debts 
owing  by  the  old  town  of  Kingston,  between  the  towns  of  Ulster,  King- 
ston, and  a  portion  of  Woodstock,  and  granting  fifty  dollars  costs  and 
their  disbursements  to  relators,  and  the  defendants  having  made  and 
filed  the  certificate  required  by  such  order  and  writ  and  return  thereto : 
Now,  on  motion  of  F.  L.  &  T.  H.  Westbrook,  attorneys  for  relators,  it 
is  adjudged  that  the  town  of  Ulster  be  charged  with  .9096  per  cent,  of 
the  whole  indebtedness  of  the  said  town  of  Kingston  as  it  existed  before 
the  division  ;  that  the  town  of  Kingston  be  charged  with  .0530  per  cent, 
of  the  whole  indebtedness  of  said  town  of  Kingston  as  it  existed  before 
the  division.     That  the  portion  of  the  town  of  Woodstock  annexed  to 


MANDAMUS.  22/ 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

said  town  from  the  old  town  of  Kingston  be  charged  with  .0374  per 
cent,  of  the  whole  indebtedness  of  said  town  of  Kingston  as  it  existed 
before  the  division. 

It  is  further  adjudged  that  the  plaintiff's  relators  recover  of  the  de- 
fendants, Lorenzo  Uunnegan,  Martin  E.  Hendricks,  Albert  H.  Vos- 
burgh,  and  Andrew  Elting,  the  sum  of  seventy-two  dollars  and  sixty- 
nine  cents,  cost  and  disbursements,  and  have  execution  therefor, 

M.  S.  DECKER, 
Deputy  Clerk. 

ARTICLE    V. 

Alternative  Writ  and  Proceedings  Thereon.    §§  2067, 
2071,  2072,  2074,  2075,  2076,  2077,  2078  to  2085. 

Sub.  I.  Application  for  alternative  writ.    §  2067. 

2.  Demurrer  and  return  to  alternative  writ.    §§  2076,  2072,  2071,  2074, 

2077,  2078,  2075. 

3.  Issues  and  proceedings  thereon.     §§  2080,  2081,  2079,  2082,  2083,  2084, 

2085. 

4.  Precedents  for  proceedings  on  alternative  writ. 

Sub.   I.  Application  for  Alternative  Writ.     §  2067. 

§2067.  Kinds  of  writ;  how  alternative  writ  granted. 

A  writ  of  mandamus  is  either  alternative  or  peremptory.  The  alternative  writ  may 
be  granted  upon  an  affidavit,  or  other  written  proof,  showing  a  proper  case  therefor; 
and  either  with  or  without  previous  notice  of  the  application,  as  the  court  thinks 
proper. 

Affidavit  on  Which  Alternative  Writ  Issued  in  First  Instance. 

(118  N.  Y.  loi.) 

new  YORK  SUPREME  COURT— County  of  Kings. 


Re-application  of  Thomas  R.  Deverell,   for  a 
writ  of  mandamus, 

agst. 

The  Musical  Mutual  Protective  Union. 


AflSdavit. 


County  of  Kings,  ss.  : 

Thomas  R.  Deverell,  being  duly  sworn,  deposes  and  says :  That  he 
resides  in  the  city  of  Brooklyn  aforesaid,  is  a  musician,  and  until  the 
31st  day  of  July,  1885,  was  a  member  in  good  standing  of  The  Musical 
Mutual  Protective  Union,  a  corporation  duly  incorporated  by  an  act  of 
the  legislature  of  the  State  of  New  York,  passed  April  nth,  1864,  and 
entitled,  "  An  act  to  incorporate  The  Musical  Mutual  Protective  Union," 
and  the  several  acts  amendatory  thereof.     That  on  or  about  the  21st 


228  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


day  of  July,  this  deponent  had  served  upon  him  by  leaving  the  same  at 
his  residence  the  paper  hereto  annexed,  marked  Exhibit  "  A." 

That  Article  II.  of  the  constitution  of  said  Union  is  as  follows,  to  wit : 
'•  The  object  of  this  Union  is  to  unite  the  instrumental  portion  of  the 
musical  profession,  for  the  better  protection  of  its  interests  in  general, 
and  the  establishment  of  a  minimum  rate  of  prices  to  be  charged  by 
members  of  said  society,  for  their  professional  services,  and  the  enforce- 
ment of  good  faith  and  fair  dealing  between  its  members." 

That  deponent  attended  at  the  time  and  place  specified  in  said 
Exhibit  "  A,"  and  that  then  and  there  deponent  was  informed  that  the 
cause  of  the  complaint  being  made  against  him  was  that  he  had  written  a 
letter  to  one  Jules  Levy.  That  deponent  replied  that  the  letter  was  a 
private  one  to  that  gentleman,  that  he  could  satisfactorily  explain  the 
matter,  that  he  had  violated  no  article  of  their  constitution,  and  that  he 
did  not  think  that  they,  the  Board  of  Directors  of  said  Union,  had  any- 
thing to  do  with  the  matter  ;  and  that  he  did  not  recognize  that  they 
had  any  jurisdiction  to  try  the  complaint  against  him  for  writing  a 
private  letter  to  any  gentleman  which  did  not  affect  the  Union  in  the 
good  faith  and  fair  dealing  existing  between  the  members  of  the  Union. 
That  the  members  of  the  board  of  directors  then  present  held  a  private 
consultation,  and  when  they  were  through  told  him  "  that  is  all ;  "  that 
deponent  then  left  the  building  and  went  to  his  house,  believing  from 
the  action  and  talk  of  the  board  of  directors  that  the  complaint  against 
deponent  had  been  dismissed.  That  on  or  about  the  28th  day  of  July, 
one  Edward  Lovenn,  a  member  of  the  said  board  of  directors,  met  this 
deponent  and  informed  him  that  as  the  board  of  directors  had  learned 
that  one  of  the  members  of  the  board  had  some  personal  ill-feeling 
against  deponent,  the  said  directors  had  put  him  off  the  board,  and  that 
the  board  had  adjourned  the  hearing  on  the  complaint  against  deponent. 
That  the  usual  and  customary  manner  of  doing  the  business  of  said 
Union  is  to  give  the  accused  member  notice  of  the  time  and  place  of 
adjournment,  but  that  such  notice  was  not  given  to  deponent,  and  that 
deponent  never  had  any  notice,  knowledge,  or  information  of  the  time 
or  place  of  said  adjournment  until  the  first  day  of  August,  1895,  when 
deponent  received  the  paper  hereto  annexed,  marked  Exhibit  "  B." 

That  as  appears  by  said  Exhibit  "  B  "  deponent,  in  violation  of  his 
legal  rights  as  a  member  of  said  Union,  has  been  expelled  therefrom 
to  his  serious  damage  and  injury,  and  without  any  trial  or  opportunity 
to  be  heard  in  his  defence  upon  the  trial  of  the  complaint  against 
deponent,  and  that  deponent  has  a  good  and  substantial  defence  to  said 
complaint  upon  the  merits,  as  he  is  advised  by  his  counsel,  Jerry  A. 
Wernberg,  who  resides  at  285  Washington  Avenue,  Brooklyn. 

That  deponent  in  the  business  of  his  profession  is  obliged  to  hire  a 
large  number  of  musicians,  and  that  deponent  has  information  and 
verily  believes  to  be  true,  that  said  Union  intends  to  notify  all  members 
of  said  Union  to  cease  working  for  or  with  deponent,  and  that  great 
and  irreparable  injury  will  be  done  this  deponent. 

THOMAS  R.  DEVERELL. 
( Acknowledgment. ) 


MANDAMUS.  229 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

The  alternative  writ  should  demand  the  exact  relief  which 
is  required,  for  the  final  peremptory  writ  if  issued  must  follow 
the  alternative  writ  upon  the  trial  of  which  it  is  granted.  See 
Peo.  ex  rcl.  Uhrie  v.  Gilroy,  60  Hun,  509,  15  Supp.  242.  The 
alternative  writ  must  allege  the  facts  relied  on  and  not  mere 
conclusions  of  law,  or  it  is  bad  upon  demurrer.  Peo.  ex  re/. 
Egan  V.  Cohinibia  Club,  20  Civ.  Pro.  319,  15  Supp.  821.  But, 
not  all  variations  between  the  alternative  and  the  peremp- 
toiy  writ  will  cause  the  latter  to  be  set  aside ;  if  the  sub- 
stance of  the  two  is  the  same,  and  they  differ  only  in  immaterial 
details,  and  where  the  act  required  is  easier  to  be  performed  by 
the  defendant  under  the  requirements  of  the  peremptory  writ 
than  it  was  under  the  requirements  of  the  alternative  writ,  the 
peremptory  writ  will  be  sustained.  Peo.  ex  rel.  Green  v.  D.  & 
C.  R.  R.  Co.,  58  N.  Y.  157.  In  this  case  the  authorities  upon 
this  subject  are  collated  and  thoroughly  discussed.  And  it  is 
held  that  the  writ  issuing  to  a  corporation  should  point  out 
in  what  the  corporation  has  failed,  and  to  direct  particularly- 
what  it  must  do.  Peo.  ex  rel.  Green  v.  D.  &  C.  R.  R.  Co.,  58 
N.  Y.  157,  supra. 

The  alternative  writ  granted  in  the  first  instance  is  in  the  nature 
of  an  order  to  show  cause,  and  also  stands  as  a  pleading.  Peo. 
ex  rel.  Lester  v.  Mitchell,  39  St.  Rep.  768,  21  Civ.  pro.  112,  15  Supp. 
305  ;  Peo.  ex  rel.  Ackerman  v.  Lumb,  6  App,  Div.  27.  The  alter- 
native writ  should  set  forth  the  facts  upon  which  the  relator 
bases  his  claim  in  the  same  manner,  and  with  the  same  par- 
ticularity as  he  is  required  to  set  them  forth  in  a  complaint. 
It  should  state  facts,  not  conclusions  of  law,  and  all  the  facts 
should  be  stated  in  the  alternative  writ  itself,  because  the  court 
cannot  look  to  the  petition  on  which  the  alternative  writ  was 
granted  to  obtain  the  facts  which  should  be  stated  in  the  writ 
itself.  Peo.  ex  rel.  Egan  v.  Columbia  Club,  20  Civ.  Pro.  323,  15 
St.  Rep.  821.  But  where  the  allegations  of  the  petition  upon 
which  the  alternative  writ  was  granted  are  incorporated  into  and 
made  part  of  the  writ,  the  court  held,  upon  appeal,  that  they  were 
to  be  regarded  as  part  of  the  writ  itself  in  a  case  where  the  re- 
spondents have  not  been  misled  or  harmed,  and  took  issues  upon 
those  allegations.  Peo.  ex  rel.  Witherbee  v.  Sup'vrs  of  Essex, 
70  N.  Y.  236. 

On  an  application  for  a  peremptory  writ,  it  has  been  held  that 


230 


MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


where  tender  was  a  condition  precedent  to  the  granting  of  the 
writ  such  tender  should  be  set  forth  in  the  affidavit  upon  which 
the  appHcation  was  made.  Matter  of  McGrath,  56  Hun,  78. 
If  there  be  a  want  of  averments  in  the  alternative  writ  showing 
the  title  in  relator  to  relief  sought,  the  error  may  be  taken  advan- 
tage of  at  any  time  before  the  peremptory  writ  is  awarded,  even 
though  the  objection  is  not  taken  in  the  return  to  the  alternative 
writ.     Peo.  ex  rel.  Ryan  v.  Green,  58  N.  Y.  303. 

Precedent  for  Alternative  Mandamus  in  First  Instance. 

The  People  of  the  State  of  New  York  ex  rel.  Charles  Bray,  Mayor  of  the 
City  of  Kingston,  and 'L^'ni'5  Bevier,  Supervisor  of  Marbletown,  to  the 
Board  of  Supervisors  of  the  County  of  Ulster  : 
Whereas,  It  appears  to  us  by  the  relation  and  complaint  of  Charles 
Bray,  on  behalf  of  the  city  of  Kingston,  and  Louis  Bevier,  on  behalf 
of  the  town  of  Marbletown,  that  the  said  city  of  Kingston  and  the  said 
town  of  Marbletown  have  taken  separate  appeals  from  the  action  of  the 
board  of  supervisors  of  the  county  of  Ulster  for  the  year  1886,  equaliz- 
ing the  valuation  of  said  city  and  town,  and  that  said  board  of  super- 
visors have  passed  a  resolution  levying  and  assessing  upon  the  whole  of 
said  county  of  Ulster,  including  said  town  of  Marbletown  and  city  of 
Kingston,  the  sum  of  $10,000  for  the  purpose  of  defraying  expenses  of 
said  appeal  and  sustaining  their  said  decision,  and  that  no  part  of  said 
sum  ought  to  be  levied  and  assessed  on  the  said  relators : 

Now,  therefore,  we  command  you  that  immediately  upon  the  receipt 
of  this  writ  you  strike  the  said  sum  of  $10,000  from  the  amount  to  be 
raised  on  the  said  county  of  Ulster,  so  far  as  the  said  city  of  Kingston 
and  town  of  Marbletown  are  affected  thereby,  and  so  amend,  modify,  or 
reconsider  your  said  action  in  so  levying  and  assessing  the  same  on 
the  whole  county,  as  that  no  part  of  said  $10,000  shall  be  levied  and 
assessed  on  said  town  of  Marbletown  or  the  city  of  Kingston,  or  that  you 
show  cause  why  the  command  of  this  writ  should  not  be  obeyed,  and 
that  you  make  return  to  this  writ  pursuant  to  the  provisions  of  §  2072 
of  the  Code  of  Civil  Procedure,  at  the  office  of  the  clerk  of  the  Supreme 
Court  in  and  for  the  county  of  Ulster,  at  his  office  in  the  city  of  King- 
ston, twenty  days  after  the  service  thereof  upon  you. 

Witness,  Hon.  Samuel  Edwards,  justice  oft  he  said  court,  at  the 
Tl.  s.l       court-house  in  Hudson,  on  the  20th  day  of  December,  1886. 

J.    D.   WUKTS.  Clerk. 
By  k.   S.   DECKER,  Deputy. 
Indorsed: — "Allowed  this  20th  day  of  December,  1886. 

"  SAMUEL  EDWARDS, 

'^Justice  Supreme  Court. ^^ 


MANDAMUS.  23 1 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Alternative  Writ  in  First  Instance.     (ii8   N.  Y.  loi.) 

The  People  of  the  State  of  New  York  upon  the  relatioti  of  Thomas  R. 
Deverell  to  The  Musical  Mutual  Protective  Union,  greeting  : 
Whereas,  It  appears  by  the  affidavit  of  Thomas  R.  Deverell,  the 
relator,  that  he  is  a  resident  of  the  city  of  Brooklyn  ;  that  prior  to  the 
31st  day  of  July,  1885,  he  was  a  member  in  good  standing  of  The  Mu- 
sical Mutual  Protective  Union,  and  that  on  the  31st  day  of  July,  1885, 
the  relator,  without  trial  or  opportunity  to  be  heard  in  his  defence  of  any 
charge  or  complaint,  and  that  said  union  intend  and  propose  to  notify 
all  musicians,  members  of  said  union,  to  receive  no  employment  from  or 
with  the  relator,  and  that  said  action  of  said  union  has  actually  caused 
great  and  manifest  injustice  to  the  relator ; 

Now,  therefore,  we  command  you  that,  immediately  upon  receipt  of 
this  writ,  you  proceed  to  restore  and  reinstate  the  relator,  the  said 
Thomas  R.  Deverell,  to  all  his  rights,  privileges,  and  benefits  which, 
under  the  constitution  and  by-laws  of  the  said  Musical  Mutual  Protec- 
tive Union,  belong  to  a  member  of  it  in  good  standing,  or  that  you  show 
cause  to  the  contrary  before  our  Supreme  Court  at  a  Special  Term 
thereof  to  be  held  at  the  Kings  County  court-house,  in  the  city  of 
Brooklyn,  on  the  17th  day  of  August,  1885,  at  10  o'clock  of  that  day,  or 
as  soon  thereafter  as  counsel  can  be  heard. 

And  how  you  shall  have  executed  this  our  writ  make  known  to  our 
Supreme  Court,  at  a  Special  Term  thereof  to  be  held  at  the  Kings 
County  court-house,  in  the  city  of  Brooklyn,  on  the  aforesaid  17th  day 
of  August,  18S5,  at  10  o'clock  on  that  day,  or  as  soon  thereafter  as 
counsel  can  be  heard. 

And  have  you  then  and  there  this  writ. 

Witness,  Hon.  Joseph  E.  Barnard,  Presiding  Justice  of  our  said 
[l.  s.]        Supreme  Court,  this  7th  day  of  August,  1885. 

EDWARD  M.  CULLEN, 

Dated,  August  7,  1885.  Clerk. 

Indorsed: — "The  within  writ  allowed  this  7th  day  of  August,  1885. 

"JOSEPH  E.  BARNARD, 

^'■Justice  Supreme  Courts 

Sub.  2.  Demurrer  and  Return  to  Alternative  Writ.      §§   2076, 
2072,  2071,  2074,  2077,  2078,  2075. 

§2076.    Contents  of  alternative  writ;  demtirrer  thereto. 

The  statement  contained  in  an  alternative  writ  of  mandamus,  of  the  facts  consti- 
tuting the  grievance,  to  redress  which  it  is  issued  ;  the  joinder  therein  of  two  or  more 
such  grievances  ;  and  the  command  of  the  writ,  are  subject  to  the  provisions  of 
chapter  sixth  of  this  act,  respecting  the  statement,  in  a  complaint,  of  the  facts 
constituting  a  cause  of  action ;  the  joinder  therein  of  two  or  more  causes  of 
action;  and  the  demand  of  judgment  thereupon.  The  person  upon  whom  the  writ 
is  served,  instead  of  making  a  return  thereto,  may  file  in  the  office  where  the 
writ  is  returnable  a  demurrer  to  the  writ ;  or  he  may  file  a  demurrer  to  a  complete 
statement  of  facts  contained  in  the  writ,  as  constituting  a  separate  grievance,  and 
make  a  return  to  the  remainder  of  the  writ.     A  demurrer  may  be  thus  taken,  in  a 


232  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


case  where  a  defendant  may  demur  to  a  complaint,  or  to  a  cause  of  action  separately 
stated  in  a  complaint,  as  prescribed  in  chapter  sixth  of  this  act ;  and  it  must  be  in  like 
form. 

§2072.     [Am'd,  1895.]     Writ ;  how  returnable. 

An  alternative  writ  must  be  made  returnable  twenty  days  after  the  service  thereof,  at 
the  office  of  the  clerk  of  the  county  designated  therein,  in  which  an  issue  of  fact  joined 
thereupon  is  triable.  A  peremptory  writ  must  be  made  returnable  at  a  Special  Term, 
or  a  term  of  the  appellate  division  of  the  Supreme  Court,  designated  therein,  to  which 
application  for  the  alternative  writ  might  have  been  made. 

L.  1895,  ch.  946. 

§  207 1 .    Alternative  writ ;  how  served. 

An  alternative  writ  of  mandamus  must  be  served  by  showing  the  original  writ,  and 
delivering  a  copy  thereof,  to  the  person  to  be  served.  Where  it  is  directed  to  a  court, 
or  to  the  judge  or  judges  of  a  court,  it  must  be  served,  either  in  term  dme  or  in  vaca- 
tion, upon  the  judge  or  judges  of  the  court ;  except  that,  where  the  court  consists  of 
three  or  more  judges,  service  upon  a  majority  of  them  is  sufficient.  Where  it  is  to  be 
served  upon  a  board  or  body,  other  than  a  corporation,  service  must  be  made  upon  a 
majority  of  the  members  thereof,  unless  the  board  or  body  was  created  by  law,  and 
has  a  chairman  or  other  presiding  officer,  appointed  pursuant  to  law ;  in  which  case 
service  upon  him  is  sufficient.  Where  the  writ  is  to  be  served  upon  a  corporation, 
service  thereof  may  be  made  upon  any  officer,  upon  whom  a  summons,  issued  out  of 
the  Supreme  Court,  may  be  served.  Where  one  or  more  of  the  persons  upon  whom 
to  make  service,  as  prescribed  in  this  section,  cannot  after  due  diligence  be  found,  the 
exhibition  of  the  original  writ  may  be  dispensed  with,  and  service  may  be  made  upon 
him  or  them,  as  prescribed  by  law  for  the  service  of  a  summons,  issued  out  of  the 
Supreme  Court. 

§2074.     [Am'd,  1895.]    Return ;  how  made. 

The  return  to  an  alternative  writ  of  mandamus  must  be  annexed  to  a  copy  of  the 
writ ;  and  must  be  filed  in  the  office  of  the  clerk  where  it  is  returnable  within  the  time 
specified  in  the  writ.  The  retu  n  to  a  peremptory  writ  of  mandamus  must  be  likewise 
annexed  to  a  copy  thereof ;  and  must,  before  the  expiration  of  the  first  day  of  the 
term  at  which  it  is  returnable,  be  either  delivered  in  open  court  or  filed  in  the  office  of 
the  clerk  of  the  county  wherein  the  term  is  to  be  held. 

§  2077.  Form  and  contents  of  return. 

The  provisions  of  chapter  sixth  of  this  act,  relating  to  the  form  and  contents  of  an 
answer  containing  denials  and  allegations  of  new  matter,  except  those  provisions  which 
relate  to  the  verification  of  an  answer,  and  to  a  counterclaim  contained  therein,  apply 
to  a  return  to  an  alternative  writ  of  mandamus,  showing  cause  against  obeying  the 
command  of  the  writ.  For  the  purpose  of  the  application,  each  complete  statement 
of  facts,  assigning  a  cause  why  the  command  of  the  writ  ought  not  to  be  obeyed,  is 
regarded  as  a  separate  defence,  and  must  be  separately  stated,  and  numbered. 

§  2078.  Further  return  cannot  be  compelled;  demurrer  to 
return. 

\  person,  who  has  made  a  return  to  an  alternative  mandamus,  cannot  be  compelled 
to  make  a  further  return.  The  people,  or  the  relator,  may  demur  to  the  return,  or  to 
any  complete  statement  of  facts,  therein  separately  assigned  as  a  cause  for  disobeying 
the  command  of  the  writ,  on  the  ground  that  the  same  is  insufficient  in  law,  upon  the 
face  thereof. 


MANDAMUS.  235, 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

§  2075.  Motion  to  set  aside  writ. 

An  alternative  writ  of  mandamus  cannot  be  quashed  or  set  aside  upon  motion,  for 
any  matter  involving  the  merits.     A  motion  to  set  aside  such  a  writ,  for   any   other' 
cause,  or  to  set  aside  or  quash  a  peremptory  writ  of  mandamus,  or  to  set  aside  the- 
service  of  either  writ,  must  be  made  at  a  Term,  whereat  the  writ  might  have  been 
granted. 

The  writ  of  alternative  mandamus  is,  when  granted  in  the  first 
instance,  in  the  nature  of  an  order  to  show  cause.  People  v. 
Rensselaer  Common  Pleas,  3  How.  164  ;  People  v.  Canal  Com.,  lo- 
Wend.  25.  But  also  stands  as  a  pleading.  People  v.  Ovens/lire^ 
41  How.  164  ;  People  v.  Ransom,  2  N.  Y.  490.  It  is  for  this  reason 
that  the  order  to  show  cause  is  usually  preferred  in  the  first  in- 
stance, since  it  is  drawn  more  readily,  and  does  not  require  the 
care  of  a  pleading.  In  People  v.  Nostrand,  46  N.  Y.  375,  it  was- 
held  that  where  proceedings  for  a  peremptory  writ  were  com- 
menced by  an  order  to  show  cause  containing  the  usual  clause, 
"or  for  other  relief,"  the  court  has  power  to  grant  any  relief  to- 
which  the  party  is  entitled,  though  not  that  specified  in  the  order. 
In  the  alternative  writ,  the  relator  must  set  forth  the  facts  on 
which  he  relies,  and  it  should  contain  no  allegations  except  such 
as  are  pertinent  to  the  relief  asked,  and  the  same  certainty  of 
statement  is  required  as  in  a  complaint.  People  v.  Supervisors  of 
Westchester,  15  Barb.  607  ;  People  v.  Ransom,  2  N.  Y.  490;  People 
V.  Ovenshire,  41  How.  164;  People  v.  Green,  58  N.  Y.  295.  It  is- 
said  the  relator  can  only  obtain  the  relief  asked.  People  v.  Super-^ 
visors  of  Dntehcss,  i  Hill,  50;  People  v.  Supervisors,  12  Barb.  446;. 
see  People  v.  Nostrand,  46  N.  Y.  375.  If  the  papers  fail  to  show 
the  relator's  title,  it  is  fatal  even  on  appeal.  People  v.  Board  of 
Appraisement,  64  N.  Y.  62y  ;  People  y.  Green,  58  id.  295.  Where 
the  relator  takes  no  issue  upon  the  allegations  of  defendant's 
affidavits,  but  proceeds  to  argument  and  asks  for  a  peremptory 
writ,  it  is  equivalent  to  a  demurrer,  it  is  an  admission  of  the  truth 
of  the  facts,  but  a  denial  of  their  sufficiency  in  law.  People  v.  Su-^ 
pervisors,  73  N.  Y.  173  ;  People  v.  Becker,  3  State  Rep.  202  ;  People 
V.  Board  of  Apportionment,  64  N.  Y.  627 ;  People  v.  Cromivell,  102 
id.  477.  And  where  the  defendant  takes  no  issue,  he  is  regarded 
as  demurring.  People  v.  Supervisors,  103  N.  Y.  541.  Where  a. 
demurrer  is  made  to  a  return,  defendant  may  still  have  judgment, 
notwithstanding  its  insufficiency,  if  the  writ  is  defective.  People 
V.  Supervisors,  32  Barb.  473.  As  to  when  direction  in  writ  is 
sufficiently   definite,  see  People  v.  Rochester  &  S.  R.  R.,  yG  N.  Y^ 


234 


MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


294;  People  V.  Dutchess  &  Col.  R.  R.  Co.,  58  id.  152.  Variance 
between  declaratory  and  mandatory  parts  of  alternative  writ  held 
amendable.  People  v.  Parle,  47  How.  370.  As  to  such  variance, 
see  Green  v.  Dutehess  &  Col.  R.  R.  Co.,  58  N.  Y.  152. 

Two  or  more  grievances  may  be  joined  in  an  alternative  writ  as 
so  many  causes  of  action,  and  the  respondent  may  demur  or 
make  return  to  the  writ,  or  he  may  file  a  demurrer  to  a  complete 
statement  of  facts  contained  in  the  writ,  as  constituting  a  sep- 
arate  grievance,  and  make  a  return  to  the  remainder  of  the  writ. 
Peo.  ex  ret.  Neftanielw.  Order  American  Star,  53  Supr.  Ct.  69. 

An  alternative  writ  of  mandamus  is  equivalent  to  a  complaint 
in  an  action,  and  a  demurrer  thereto  stands  as  a  demurrer  in  an 
ordinary  suit,  and  therefore  if  a  substantial  right  is  set  out  in  the 
writ  the  proceeding  will  not  fail  because  the  relator  asks  for  too 
much,  or  mistakes  to  some  extent  the  relief  to  which  he  is  en- 
titled. The  court  in  awarding  the  peremptory  writ  may  mould  it 
according  to  the  just  rights  of  all  the  parties.  Peo.  ex  rel.  Keene 
V.  Supvrs.,  142  N.  Y.  278. 

The  question  whether  mandamus  is  the  proper  remedy,  or 
whether  the  relator  has  another  legal  remedy,  are  questions 
that  should  be  raised  on  the  return  to  the  writ,  and  by  a  de- 
murrer, as  provided  for  by  §  2076,  and  not  by  motion.  Peo.  ex 
rel.  Fulton  v.  Sup.  of  Oswego,  50  Hun,  106,  3  Supp.  752.  Sec- 
tion 2072  provides  that  the  alternative  writ  should  be  return- 
able 20  days  after  the  service  thereof,  at  the  ofifice  of  the  clerk 
of  the  county  designated  therein,  in  which  the  issue  of  fact 
is  triable  ;  and  where  such  alternative  writ  is  made  returnable  on 
a  day  certain,  at  a  Special  Term,  instead  of  being  made  returnable 
in  20  days  as  required  by  this  section,  it  was  held  to  be  irregular; 
but  where  the  motion  to  set  it  aside  on  these  grounds  is  made 
before  the  return  day  named  in  it,  it  is  within  the  power  of  the 
court  to  amend  it.  Peo.  ex  rel.  Mullin  v.  Brotherhood  of  Stationary 
Engineers,  19  Civ.  Pro.  175,  12  Supp.  362  ;  see,  also,  §  2075  of  the 
Code,  ante.  The  alternative  mandamus  should  be  served  eight 
days  before  the  day  specified  for  showing  cause.  Peo.  ex  rel. 
Wistvall  V.  Judges  of  Rensselaer,  3  Ilcnvard  Pr.  164.  The  objec- 
tion that  the  writ  is  not  made  returnable  at  Special  Term  cannot 
be  taken  after  a  return  is  made.  Peo.  ex  rel.  Argyle  &  Ft.  Edward 
Plank  Road  Co.  v.  Com.  of  Higlnvays,  11  Howard,  89.  See,  under 
§  2072,  Peo.  ex  rel.   Crouse  v.  Supervisors  of  Fulton  County,  70 


MANDAMUS.  235 


Art.  5.     Alternative  "Writ  and  Proceedings  Thereon. 

Hun,  563.  A  respondent  may  obtain  an  extension  of  time  in 
which  to  make  his  return  to  the  alternative  writ  of  mandamus. 
See  Pco.  V.  Blackhiirst,  60  Hun,  63,  15  Supp.  114,  and  Code  Civ. 
Pro.  §  2089. 

An  alternative  mandamus  may  be  served  after  twelve  o'clock 
noon,  on  a  legal  half  holiday.  Peo.  ex  rel.  Fulton  v.  Sup.  Osivcgo, 
50  Hun,  106,  3  Supp.  752,  19  St.  Rep.  24,  15  Civ.  Pro.  379. 

The  difference  between  the  old  practice  and  the  present  prac- 
tice under  this  section  of  the  Code,  regulating  the  form  and 
contents  of  a  return,  is  discussed  in  Peo.  ex  rel.  McMackin  v. 
Board  of  Police,  \6  Hun,  299,  ii  Supp.  403.  The  court  says: 
"  As  the  practice  was  followed  in  the  early  administration  of  the 
common  law,  an  inferential  denial  of  this  description  would  not 
have  been  permitted.  There  the  utmost  particularity  and  pre- 
cision were  required  to  be  observed,  and  the  reason  upon  which 
the  rule  was  founded  was  that  the  return  when  it  was  made  be- 
came conclusive  and  could  not  be  questioned  in  that  proceeding, 
but  the  remedy  of  the  relator,  if  it  was  not  true,  was  to  bring 
an  action  against  the  respondent  for  damages  for  making  a  false 
return,  and  it  was  of  the  utmost  consequence  to  him  in  maintain- 
ing such  an  action  that  the  return  should  be  precise,  positive, 
and  unequivocal.  But  this  has  been  changed  by  statute,  and  for 
many  years  it  has  been  the  practice  to  allow  the  relator  to  take 
issue  upon  the  return  and  to  have  a  trial  of  the  facts  the  same 
as  might  be  had  in  any  other  litigation,  The  same  strictness  in 
the  return  has  accordingly  ceased  to  be  necessary,  and  it  has  now 
been  made  analogous  to  pleadings  in  other  actions.  This  was 
considered  in  Springfield  v.  Conini.  of  Hampden,  10  Pick.  59,  where 
it  was  held  as  the  result  of  the  more  recent  authorities  that  a 
return  is  sufficient  if  it  contains  a  full  and  certain  answer  to  the 
allegations  expressly  made,  and  discloses  a  fair  legal  reason  why 
the  mandamus  should  not  be  obeyed.  This  rule,  still  further  liber- 
alized, has  found  its  way  into  the  Code  of  Civil  Procedure,  for  by 
§  2077,  the  provisions  of  chap.  6,  relating  to  the  form  and  con- 
tents of  an  answer  containing  denials  or  allegations  of  new  matter 
except  those  relating  to  the  verification  and  counterclaim,  apply 
to  a  return  to  an  alternative  writ  of  mandamus  showing  cause 
against  obeying  the  command  of  the  writ ;  and  the  provisions  of 
the  Code  concerning  the  answer  in  an  ordinary  litigation  are  such 
as  to  permit  inferential  or  argumentative  pleading  ;   and  as  that  is 


236  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

permitted  in  other  litigations,  it  may  be  equally  allowed  in  the 
answer  to  an  alternative  writ  of  mandamus." 

This  case  further  holds  that  where  a  board  of  police  and  the 
individual  members  thereof  are  both  made  parties  respondents  to 
a  writ  of  mandamus  all  of  them  are  not  only  at  liberty  to  make 
a  return  thereto  but  it  is  their  duty  to  do  so.  Peo.  ex  rel.  Mc- 
Mackin  v.  Board  of  Police,  46  Hun,  299,  11  Supp.  403,  affirmed, 
107  N.  Y.  235.  See,  also,  King  v.  Bailey,  i  Keble,  33,  cited  in 
the  above  case,  where  it  was  held,  that  where  a  mandamus  issued 
to  the  aldermen,  bailiffs,  and  commonalty  of  a  municipal  corpora- 
tion, that  one  part  of  said  corporation  might  make  one  return, 
and  the  other  part  might  make  another  return  upon  the  ground 
that  these  different  portions  are  attributes  of  the  corporation 
made  parties  to  the  writ. 

A  return  in  which  the  affiant  stated  that  he  has  no  knowledge 
or  information  sufficient  to  form  a  belief  as  to  the  truth  of  posi- 
tive statements  of  the  affidavit  of  the  relator  does  not  raise  an 
issue.  Peo.  ex  rel.  Andrezvs  v.  McGuire,  29  St.  Rep.  674,  8  Supp. 
852,  reversed  on  another  point,  126  N.  Y.  419,  38  St.  Rep.  444. 
Compare,  also,  Matter  of  Freel,  89  Hun,  80,  35  Supp.  59  ;  Peo. 
V.  Sutton,  88  Hun,  175,  34  Supp.  487  ;  and  Peo.  ex  rel.  Anibal 
V.  Board  of  Snpvrs.,  53  Hun,  255,  6  Supp.  591,  in  which  cases  the 
respondent's  affidavits  were  held  not  to  raise  an  issue,  as  being 
upon  information  and  belief,  etc.,  but  note  that  they  were  held  to 
be  defective  upon  a  motion  for  a  peremptory  writ  of  mandamus 
in  the  first  instance. 

The  return  to  an  alternative  writ  of  mandamus  must  deny  the 
material  facts  stated  in  the  writ,  or  some  of  them,  or  allege  other 
and  additional  facts,  which  in  law  would  defeat  relator's  claim. 
People  V.  Supervisors,  32  Barb.  473  ;  Commercial  Bank  of  Albany 
V.  Canal  Commissioners,  10  Wend.  25  ;  People  ex  rel.  v.  Supervisors, 
14  Barb.  52;  People  ex  rel.  v.  Commissioners,  ii  How.  89.  The 
return  should  conform  to  the  rules  of  pleading  and  be  positive 
rather  than  argumentative  and  evasive,  and  the  familiar  rule  in 
pleading  that  the  evidence  should  not  be  set  out,  should  be  fol- 
lowed. People  V.  Ransom,  2  N.  Y.  496  ;  People  v.  Baker,  35  Barb. 
105  ;  People  V.  Supervisors,  18  How.  152  ;  Matter  of  Trustees  of 
Williamsburgh,  i  Barb.  34.  Any  number  of  facts  constituting 
valid  reasons  for  not  performing  the  act  which  the  writ  seeks  to 
compel    may   be  averred.     People  v.   Supervisors  of    Ulster,  32 


MANDAMUS.  237 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Barb.  473.  An  equivocal  return,  or  one  pleading  a  statute,  but 
substantially  departing  from  the  requirement  of  the  statute, 
is  not  enough.  People  ex  rel.  Waller  v.  Board  of  Supervisors,  56 
N.  Y.  249. 

Where  an  allegation  in  the  af^davit  of  relator  in  proceedings 
for  mandamus  was  not  put  in  issue  by  the  return  by  a  positive 
denial,  but  only  upon  information  and  belief,  it  was  held,  that 
this  was  not  sufificient,  but  it  should  have  been  certain,  and  of 
such  a  nature  as,  if  false,  would  have  permitted  of  a  remedy 
by  action.  People  ex  rel.  Kelly  v.  Common  Council  of  Brookly?t, 
yy  N.  Y.  503.  This  decision  was  made  in  1 879,  under  the  old  Code. 
Where  the  allegations  in  the  return  were  positive  and  those  in 
the  affidavit  of  relator  on  information  and  belief,  the  writ  was 
denied.  People  v.  Green,  i  Hun,  i.  In  fine  the  return  must,  as 
is  said  by  Bockes,  J.,  in  35  Barb.  105,  be  good,  tested  by  the  ordi- 
nary rules  of  pleading,  both  in  form  and  substance.  The  remedy 
for  a  bad  pleading  in  a  return  is  motion  to  strike  out  as  sur- 
plusage or  other  pertinent  ground.  An  allegation  as  to  matter  of 
law  is  not  proper  in  the  return,  which  should  only  set  out  facts, 
not  legal  principles,  and  where  the  statements  of  fact  are  outside 
of  the  issue  and  irrelevant  to  it  and  contain  more  than  a  sub- 
stantial statement  of  the  relevant  facts,  they  are  not  proper. 
Peo.  V.  Ransom,  2  N.  Y.  496;  Peo.  ex  rel.  v.  Commissioners,  11 
How.  89.  The  return  has  in  practice  been  verified,  as  it  is  an 
answer  to  a  writ  granted  on  a  verified  petition,  but  the  section 
does  not  seem  to  require  it.  Where  fraud  or  collusion  are  setup 
in  the  return  to  avoid  relator's  case,  the  facts  should  be  fully 
pleaded.  People  v.  Schuyler,  51  How.  461.  On  return  to  an 
alternative  writ  facts  material  to  the  issue  occurring  after  the 
granting  of  the  writ  may  be  pleaded.  People  v.  Baker,  14  Abb. 
19.  In  People  ex  rel.  v.  Board  of  Assessors,  7  Hun,  228,  it  was 
held  that  where  the  writ  was  granted  on  facts  positively  averred 
in  the  affidavits,  and  the  defendant  in  the  return  made  denial  on 
information  and  belief,  that  it  amounted  to  nothing,  that  the 
form  of  denial  was  used  in  pleading  to  raise  an  issue,  but  not  for 
any  other  purpose.  This  must  be  considered  in  connection  with 
the  fact  that  the  present  section  does  not  seem  to  require  a  veri- 
fication. Before  the  Code  it  was  held  the  court  might  require  a 
verification  or  not,  and  that  it  need  not  be  signed  by  the  party 
making  it ;  and  if  made  by  a  corporation,  need  not  be  signed  by 


238 


MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


the  head  of  it,  or  sealed  by  the  corporate  seal.  Fish  v.  Weather- 
wax,  2  Johns.  Cas.  215.  The  making  of  a  false  return  renders 
the  deponent  liable  for  damages  occasioned  thereby.  In  People 
V.  Supervisors  of  Richmond,  28  N.  Y.  112,  where  supervisors  had 
made  a  false  return  to  a  writ  sued  out  by  an  individual,  and  the 
relator  had  thereby  been  deprived  of  damages  against  a  town, 
the  supervisors  were  held  liable  for  damages  to  the  extent  of  in- 
terest on  the  amount  of  damages  finally  assessed.  A  mandamus 
will  issue  to  compel  a  judge  to  sign  a  bill  of  exceptions,  but  not 
to  settle  it  in  a  particular  manner  when  there  is  a  dispute  as  to 
the  incidents  of  the  trial.  Tweed  v.  Davis,  i  Hun,  252.  For 
precedent  for  return  to  alternative  writ,  see  §  2082. 

The  provision  as  to  demurring  is  in  accordance  with  People  ex 
rel.  v.  Baker,  35  Barb.  105.  There  is  no  provision  in  the  Code 
to  compel  a  return,  and  it  seems  unnecessary,  as  the  command 
of  the  writ  is  to  perform  the  act  or  show  cause  to  the  contrary  ; 
and  in  case  of  failure  to  do  either,  the  defendant  is  liable  for 
a  contempt  upon  the  issuing  of  a  peremptory  writ  and  failure  to 
obey  its  direction. 

As  an  alternative  writ  of  mandamus  has  the  character  of  a  com- 
plaint in  an  action,  it  may  be  demurred  to  with  like  effect  as 
upon  a  demurrer  to  a  complaint.  The  demurrer  of  the  relator  to 
the  defendant's  return  subjects  the  writ  to  criticism  for  the  pur- 
pose of  seeing  whether  it  states  facts  suf^cient  to  support  the  re- 
lief sought.  If  it  does  not,  the  demurrer  to  the  defendant's 
return  requires  no  consideration.  People  ex  rel.  McGiiire  v. 
Bricklayers    Union,  20  App.  Div.  9. 

The  alternative  writ  is  a  pleading  and  must  stand  or  fall  on  the 
sufficiency  of  its  own  recital  of  facts.  Therefore,  on  demurrer  to 
the  alternative  writ,  resort  cannot  be  had  to  the  petition  or  affi- 
davits for  facts  to  sustain  it.  People  ex  rel.  Decker  v.  Parmelee,  22 
Misc.  384.  In  general  the  statements  upon  information  and 
belief  in  affidavits  in  opposition  to  the  motion  for  peremptory 
mandamus  are  not  effectual  to  defeat  a  motion  founded  upon 
positively  sworn  statements,  but  this  rule  does  not  apply  to 
proceedings  instituted  by  the  alternative  writ,  for  then  issues 
are  presented  and  tried  the  same  as  in  actions.  People  ex  rel. 
McGidre  v.  Bricklayers   Union,  20  App.  Div.   11. 


MANDAMUS.  239 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


Precedent  for  Demurrer  to  Alternative  Writ. 

(Title.) 

The  defendant  herein  demurs  to  the  alternative  writ  of  mandamus 
heretofore  served,  on  the  grounds, 

First. — That  there  is  an  improper  joinder  of  parties  as  relators. 

Second. — That  the  causes  of  action  or  matters  set  out  as  the  grounds 
for  the  writ  are  improperly  joined. 

Third. — That  the  facts  set  out  in  the  affidavit  of  relators  are  insuf- 
ficient to  entitle  them  to  the  relief  asked,  or  to  any  relief  by  way  of 
mandamus.  H.  CHIPP,  Jr., 

Attorney  for  Defendant. 

Precedent  for  Return  to  Alternative  Writ. 

(Title.) 

The  defendant  making  return  to  the  alternative  writ  of  mandamus, 
heretofore  served,  shows  to  the  court  that  the  command  of  the  writ  has 
been  fully  complied  with  and  obeyed,  in  that  the  sum  of  $10,000  levied 
and  assessed  on  the  county  of  Ulster,  for  the  purpose  of  paying  on  the 
part  of  Ulster  County  the  expenses  of  the  assessment  taken  by  the  town 
of  Marbletown  and  the  city  of  Kingston,  has  been  stricken  from  the 
sum  to  be  levied  on  the  county  at  large,  and  no  part  of  said  sum  is  now 
levied  or  assessed  against  said  town  or  city. 

THE  BOARD  OF  SUPERVISORS  OF  ULSTER  COUNTY, 
By  HOWARD  CHIPP,  Jr.,  its  Attorney. 

{Add  verification  by  chairtnan.) 

While  a  further  return  cannot  be  compelled,  the  relator  can 
undoubtedly  make  a  supplemental  return  under  §  544  Code  Civ. 
Pro.  See  Pco.  ex  rel.  N.  V.  Underground  Ry.  Co.  v.  Newton,  19 
Civ.  Pro.  416.  A  writ  of  mandamus  will  not  be  set  aside  for 
failure  of  the  clerk  to  enter  the  order  upon  which  it  was  granted. 
Pco.  ex  rcl.  Gaylordw.  Supvrs.  of  Schoharie  County,  15  Supp.  795. 
The  alternative  writ  cannot  be  quashed  or  set  aside  upon  motion, 
for  any  matter  involving  the  merits,  and  the  persons  to  whom  it  is 
directed  must  either  make  a  return  to  it  or  demur.  Pco.  ex  rel. 
Fisk  V.  Deverman,  83  Hun,  183,  64  St.  Rep.  147,  31  Supp.  593. 
A  peremptory  writ  must  command  precisely  what,  and  no  more 
than  the  party  to  whom  it  is  directed  is  legally  required  to  do, 
and  if  it  requires  more,  the  court  may  in  its  discretion  quash  the 
writ  or  it  may  allow  the  same  to  be  amended  under  §§  721,  722, 
and  723,  and  1997,  Code  Civ.  Pro.  Pco.  ex  rel.  Hasbrouck  v. 
Supvrs.,  135  N.  Y.  533. 

A  party  must  be  served  with  a  writ  and  have  had  an  opportunity 


^40  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


under  g  2075  of  the  Code,  to  make  any  of  the  motions  indicated 
in  that  section,  or  make  or   refuse  to   make  a  return  to  the  same 
before  he   can  be  adjudged  guilty  of  a   contempt  ;  so   held  by 
Mayham,  J.,  dissenting  in  Peo.  ex  rcl.  Piatt  v.  Rice,  80  Hun,  454, 
62  St.  Rep.  289,  30  Supp.  457.     Whether  mandamus  is  the  proper 
remedy,  or  whether  the  relator  has  another  legal  remedy,  are  ques- 
tions which  involve  the  merits,  and  thus  such   questions  should 
be  raised   by  a  return  to  the  writ  or  by  a  demurrer,  as  provided 
by  §  2076,  and  not  by  a  motion   to   quash  the  writ.     Peo.  ex  rel. 
Fulton  V.  Sup.  of  Oswego,  50  Hun,  106,  3  Supp.  752,  15  Civ.  Pro. 
379.     As  the   respondent  cannot   move  to  quash   an  alternative 
writ  for  any  matter  involving  the  merits,  he  must  either  make  a 
return  thereto  or  demur.     If  he  deems  the  facts  stated  in  the  writ 
insufficient  to  entitle  the   relator  to   relief,  he  should  demur.     If 
the  facts  are  stated  untruly,  he  must  make  a  return  to  the  writ  ; 
and  as  the  respondent  cannot  quash  the  writ  by  motion,  for  mat- 
ters involving  the  merits,  he  is   precluded    from   accomplishing 
the  same  object  by  an  appeal.     Peo.  ex  rel.  Fisk  v.  Devcrmann, 
83  Hun,  183,64  St.  Rep.  147,  31  Supp.  593.    An  alternative  man- 
damus is  in  the  nature  of  an  order  to  show  cause,  and  no  appeal 
lies  from  an  order  granting  it.     It  does  not  affect  a  substantial 
right,  because  it  determines  nothing  against  the  respondent  or 
in  favor  of  the  relator,  and  it  cannot  be  quashed  or  set  aside  for 
any    matter    involving    the  merits.      Peo.  ex  rel.    Ackerman   v. 
Lumb,  6  App.  Div.  27. 

A  peremptory  writ  of  mandamus  must  be  quashed  where  no 
notice  of  application  therefor  has  been  given  as  required  by  §  2070 
Code  Civ.  Pro.  Peo.  v.  Board  of  Canvassers  Dutchess  County,  48 
St.  Rep.  533,  64  Hun,  634,  18  Supp.  302.  The  failure  to  make 
and  enter  a  formal  order  on  the  granting  of  the  alternative  writ 
is  no  ground  for  setting  aside  the  mandamus,  as  the  entry  of  the 
order  is  a  mere  clerical  duty,  and  it  will  be  allowed  to  be  entered 
nunc  pro  tunc.  Peo.  v.  Board  of  Supvrs.  Schoharie  County,  15 
Supp.  795,61  Hun,  622,  40  St.  Rep.  66. 

SuK.  3.   Issues  and  Proceedings  thereon.     §§  2080,  2081,  2079, 
2082,  2083,  2084,  2085. 

§  2080.  Application  of  certain  provisions  of  chapter  sixth. 

(^ral  pleadings  upon  a  writ  of  mandamus  are  abolished,  and  no  pleadings  are 
allowed,  except  as  prescribed  in  the  foregoing  sections  of  this  article.  The  provisions 
•of  title  second  of  chapter  sixth   of   this  act  apply  to  the  writ  and  the  return;  except 


MANDAMUS.  24 1 

Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

that  it  is  not  necessary  to  serve  a  copy  of  either,  upon  the  attorney  for  the  adverse 
party,  or  to  verify  either,  and  that  neither  can  be  amended,  without  special  application 
to  the  court,  or  strichen  out  as  sham. 

Title  second  of  chapter  sixth  is  entitled  "  Pleadings  in  Courts 
of  Record,"  including  counterclaims,  and  includes  §§  478  to  546. 

§  2081.  Service  of  notice  of  filing  return,  and  demurrer. 

Where  a  return  to  an  alternative  writ  of  mandamus  has  been  filed,  the  attorney  for 
the  defendant  making  it  must  serve,  upon  the  attorney  for  the  people  or  the  relator,  a 
notice  of  the  filing  thereof.  Where  the  people  or  the  relator  demur  to  the  return,  or 
to  a  part  thereof,  a  copy  of  the  demurrer  must  be  served  upon  the  attorney  for  the 
defendant,  within  twenty  days  after  the  service  of  such  a  notice.  Where  the  defendant 
demurs  to  the  writ,  or  to  a  part  thereof,  a  copy  of  the  demurrer  must  be  served  upon 
the  attorney  for  the  people  or  the  relator,  within  the  time  prescribed  by  law  for 
filing  it. 

§  2079.  Issue  of  fact;  when  it  arises. 

An  issue  of  fact  arises  upon  a  denial,  contained  in  the  return,  of  a  material  allega- 
tion of  the  writ,  or  upon  a  material  allegation  of  new  matter,  contained  in  a  return ; 
unless  a  demurrer  thereto  is  taken.  Where  the  people  or  the  relator  demur  to  a  com- 
plete statement  of  facts,  separately  assigned  as  cause  for  disobeying  the  command  of 
the  writ,  an  issue  of  fact  arises,  with  respect  to  the  remainder  of  the  return. 

S  2082.  Subsequent  proceedings  the  same  as  in  an  action. 

Except  as  otherwise  expressly  prescribed  in  this  act,  the  proceedings  after  issue  is 
joined,  upon  the  facts  or  upon  the  law,  are,  in  all  respects,  the  same  as  in  action ;  and 
in  each  provision  of  this  act,  relating  to  the  proceedings  in  an  action,  apply  thereto. 
For  the  purpose  of  the  application,  the  writ,  the  return,  and  the  demurrer  are  deemed 
to  be  pleadings  in  an  action ;  and  the  final  order  is  deemed  to  be  a  final  judgment,  and 
may  be  entered  and  docketed,  and  enforced,  with  respect  to  such  parts  thereof  as  are 
not  enforced  by  a  peremptory  mandamus,  as  a  final  judgment  in  an  action.  But 
before  the  final  order  can  be  docketed,  or  an  execution  issued  thereupon,  an  enrol- 
ment must  be  filed  thereupon,  as  a  judgment  roll  in  an  action.  For  that  purpose,  the 
clerk  must  attach  together  and  file  in  his  office,  a  certified  copy  of  the  final  order; 
the  writ  and  the  return,  or  copies  thereof,  together  with  the  same  papers,  which  are 
required  bylaw  to  be  incorporated  into  a  judgment  roll  in  an  action.  Where  the  final 
order  is  in  favor  of  the  people  or  the  relator,  it  must  award  a  peremptory  mandamus, 
to  be  forthwith  issued. 

2  R.  S.  586,  §  55  and  part  of  §  57  (2  Edm.  608)  ;  Co.  Proc.  §  471. 

g  2083.  Issue  of  fact;  how  triable. 

An  issue  of  fact,  joined  upon  an  alternative  writ  of  mandamus,  must  be  tried  by  a 
jury,  as  if  it  was  an  issue  joined  in  an  action  specified  in  §  968  of  this  act;  unless  a 
jury  trial  is  waived,  or  a  reference  is  directed  by  consent  of  parties.  Where  the  writ 
v.as  issued  upon  the  relation  of  a  private  person,  the  relator  or  the  defendant  Is 
entitled  to  a  verdict,  report,  or  decision,  where  he  would  be  entitled  thereto,  if  the  issue 
was  joined  in  an  action,  brought  by  the  relator  against  the  defendant,  to  recover  dam 
ages  for  making  a  false  return. 

§  2084.    [Am'd,  1895.]     Id.;  where  triable. 

An  issue  of  fact,  joined  upon  an  alternative  writ  of  mandamus,  granted  at  a  special 
term  of  the  Supreme  Court,  is  triable  in  the  county,  wherein  it  is  alleged  in  the  writ, 
16 


>42 


MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


that  the  material  facts  took  place,  unless  the  court  directs  it  to  be  tried  elsewhere. 
An  issue  of  fact,  joined  upon  an  alternative  writ  of  mandamus,  granted  at  a  term  of 
the  appellate  division  of  the  Supreme  Court,  is  triable  in  the  county  which  deter- 
mines the  judicial  department  wherein  the  application  for  the  writ  must  be  made  ; 
unless  the  appellate  division  directs  it  to  be  tried  in  another  county  of  the  same 
judicial  department.  Upon  the  trial  of  an  issue  of  fact,  joined  upon  an  alternative 
writ  of  mandamus,  the  verdict,  report,  or  decision  must  be  returned  to,  and  the  final 
order  thereupon  must  be  made  by,  the  appellate  division  or  the  Special  Term,  as  the 
case  requires. 
L.  1895,  ch.  946. 

§  2085.  [Am'd,  1895.]  Issue  of  law  upon  General  Term*  man- 
damus ;  how  and  where  triable. 

An  issue  of  law,  joined  upon  an  alternative  writ  of  mandamus,  granted  by  the 
appellate  division,  must  be  tried,  and  the  final  order  thereupon  must  be  made,  by  the 
appellate  division. 

By  the  old  practice  under  the  common  law,  the  relator  was 
not  permitted  to  traverse  the  return  notwithstanding  that  it 
might  be  false  in  fact,  and  the  remedy  was  either  by  an  action 
on  the  case  for  a  false  return,  or  if  the  matter  concerned  the 
public,  by  indictment  of  the  person  making  the  false  return. 
Fish  V.  Weatherwax,  2  John.  Cases,  217,  note,  §  63.  But  subse- 
quently it  was  provided  by  statute,  that  whenever  a  return  was 
made  to  a  writ  of  mandamus,  the  relator  might  demur  or 
plead  to  all  or  any  of  the  material  facts  contained  in  the  return, 
to  which  the  person  making  the  return  must  reply,  take  issue,  or 
demur,  and  proceedings  were  had  thereon  as  if  the  relator  had 
brought  his  action  on  the  case  for  a  false  return.  The  provisions 
of  the  R.  S.  was  stated  by  Sutherland,  J.,  as  follows  :  "  Although 
these  statutes  contemplate  formal  written  pleadings  in  the  ordi- 
nary mode  of  conducting  suits,  the  practice  of  the  court  is  virtually 
to  allow  pleadings  ore  tenus  ;  that  is,  the  relator  is  permitted  to 
discuss  the  return  and  to  ask  for  a  peremptory  mandamus,  and 
whilst  he  does  not  put  in  a  formal  demurrer,  the  case  is  consid- 
ered as  embraced  in  the  description  of  non-enumerated  business, 
and  is  to  be  heard  as  such  ;  but  if  a  formal  demurrer  is  interposed,  it 
becomes  enumerated  business  andean  be  heard  only  at  the  stated 
terms.  It  is  optional  with  the  relator  whether  it  shall  be  consid- 
ered enumerated  or  non-enumerated  business,  unless  the  court 
specially  direct  formal  pleadings  to  be  interposed."  People  ex 
rel.  Bcntlcy  Comm.  of  Highways,  6  Wend.  560.  But  the  Code 
Civ.  Pro.  has  made  new  and  sweeping  changes.     Oral  pleadings 

*  So  in  original. 


MANDAMUS.  243 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

are  abolished  by  §  2080,  and  no  pleadings  are  allowed  except 
those  provided  by  §§  2067  and  2079  ;  that  is  to  say,  the  writ, 
which  fulfils  the  office  of  a  complaint,  the  return,  which  fulfils 
the  office  of  an  answer,  and  a  demurrer  by  the  defendant  to  the 
writ,  or  demurrer  by  the  relator  to  the  return.  Thus  it  is  seen 
that  there  is  no  provision  made  for  a  reply  to  the  return,  and  that 
such  reply  is  no  longer  necessary  under  §  2079,  ^'""^  i^  even  pro- 
hibited by  §  2080.  Mr  Throop  said,  in  a  note  to  §  2079,  ^^^^^  the 
effect  of  the  section  is  to  dispense  with  a  reply. 

And  thus  the  return  is  to  be  treated  in  all  respects  like  an  an- 
swer to  a  complaint  under  §  964  ;  and  it  seems  that  as  an  answer 
containing  a  counterclaim  requires  a  reply  under  §  5 14,  that  there- 
fore no  counterclaim  can  beset  up  in  the  return  to  the  alternative 
writ  of  mandamus.  People  ex  rel.  Neftaniel  v.  Order  American 
Star,  53  Supr.  66.  See  in  the  case  last  cited  a  full  discussion  by 
Freedman,  J.,  of  the  former  and  present  practice  on  the  return 
to  the  alternative  writ.  The  old  rule  that  the  relator,  unless  he 
demurred  to  the  return  to  the  alternative  writ,  was  bound  to  plead 
and  reply  to  it,  and  that  unless  he  so  pleaded,  the  return  was  to  be 
taken  at  the  trial  as  true,  has  been  completely  abrogated.  Peo. 
ex  rel.  Neftaniel  v.  Order  American  Star,  53  Supr.  70.  Note  also 
that  §  2077,  applying  the  provisions  of  chap.  6,  Code  Civ.  Pro., 
to  mandamus,  excepts  those  provisions  relating  to  a  counterclaim. 
In  this  section  the  Code  abolishes  oral  pleadings  upon  a  writ  of 
mandamus,  and  again  states  the  provisions  of  title  second,  chap. 
6,  of  the  Code  Civ.  Pro.  already  made  applicable  by  §§  2076  and 
2077,  except,  however,  that  it  is  not  necessary  to  serve  a  copy  of 
either  the  writ  or  the  return  thereto  upon  the  attorney  for  the  ad- 
verse party,  nor  is  it  necessary  to  verify  either.  It  was  held  that 
under  this  section  there  was  a  proper  averment  of  the  presentation 
of  an  application  to  the  comptroller  under  chap.  448,  Laws  1885, 
when  the  petition  stated  that  the  applicant  "  duly  made  applica- 
tion to  the  comptroller  under  and  in  pursuance  of  the  provisions 
of  chap.  448,  Laws  of  1885,  and  as  authorized  thereby,  and  by  law 
to  cancel  said  tax  sales,  and  the  comptroller,  upon  said  application 
and  the  papers  presented  therewith,  did  by  proper  order  and  de- 
cision duly  cancel,  annul,  and  set  aside  said  sales  as  wholly  illegal 
and  void."  Peo.  ex  rel.  Harris  v.  Commissioners,  90  Hun,  530. 
Certain  criticisms  by  the  relator  upon  the  verification  of  the  return 
of  the  respondent  were  held  to  be  not  well  taken  under  the  pro- 


244 


MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


visions  of  this  section  ;  but  it  is  not  stated  in  the  case  what  these 
criticisms  were.  Pco.  ex  rel.  Cosford  v.  Siipvrs.  of  Niagara  Co., 
38  Supp.  967,    15  Supp.  682. 

A  return  may  contain  two  or  more  statements  of  fact,  assign- 
ino-  cause  why  the  mandate  of  the  writ  should  not  be  obeyed, 
and  those  complete  statements  are  regarded  as  separate  de- 
fences and  must  be  separately  stated  and  numbered.  Pea.  ex 
rel.  V.  Order  American  Star,  53  Supr.  66.  For  a  complete 
collation  of  authorities  upon  the  application  of  title  second 
of  chap.  6,  Code  Civ.  Pro.,  to  the  writ  of  mandamus  and  to  the 
return  thereto,  see  cases  cited  under  §§  2076  and  2077.  It 
was  held  in  People  v.  Board  of  Metropolitan  Police,  26  N.  Y. 
316,  that  if  the  relator  took  issue  upon  the  facts  in  a  return,  he 
could  not  afterward  question  their  suf^ciency  as  matter  of  law, 
and  that  if  the  verdict  is  against  him  on  the  facts  the  writ  must 
be  refused.  This  was  under  the  practice  requiring  either  a  de- 
murrer or  plea,  and  as  the  necessity  for  a  plea  is  abrogated  by 
this  section  and  an  issue  of  fact  raised  on  the  alternative  writ 
and  return,  it  is  more  than  doubtful  whether  a  mere  omission  to 
demur  would  concede  the  sufficiency  of  the  return  as  matter  of 
law,  and  prevent  the  relator  on  the  trial  from  insisting  that  the 
facts  stated  in  the  return  did  not  constitute  a  defence.  A  re- 
lator who  takes  no  issue  on  the  affidavits  of  defendant  but  asks 
for  a  peremptory  writ  is  regarded  as  interposing  a  demurrer. 
People  V.  Supervisors,  73  N.  Y.  173  ;  People  v.  Board  of  Apportion- 
ment, 64  id.  627  ;  People  v.  Becker,  3  State  Rep.  102  ;  People  v. 
Cromwell,  102  N.  Y.  477.  The  averments  of  the  writ  cannot  be 
supported  by  the  papers  on  which  it  is  granted.  People  v.  Super- 
visors, 15  Barb.  607:  People  v.  Baker,  14  Abb.  19;  s.  c.  35 
Barb.  104. 

But  the  People  v.  Board  of  Police,  26  N.  Y.  3 16,  supra, 
seems  to  be  limited  by  People  ex  rel.  D.  IV.  &  P.  R.  R.  Co.  v. 
Bachellor,  53  N.  Y.  138,  where  the  court  approves  The  Com- 
mercial Bank  of  Albany  V.  The  Canal  Commissioners,  10  Wend. 
25,  stating  that  this  latter  case  gives  the  correct  rule,  which  is 
that,  "  at  any  time  after  the  return  and  before  the  peremptory 
mandamus  is  awarded,  the  defendant  may  object  to  the  want  of 
sufficient  title  in  the  relator  to  the  relief  sought,  or  show  any 
other  defect  in  substance,  though  he  cannot  after  return  object 
to  defects  in  form." 


MANDAiMUS.  245 


Art.  5.     Alternative  "Writ  and  Proceedings  Thereon. 

See,  also,  to  the  same  effect  People  ex  rel.  Ryan  v.  Greene,  58 
N.  Y.   305,  reversing  5  Daly,  254,  and  affirming  46  Howard,  169. 

Where  the  respondent,  in  his  return  to  the  alternative  writ, 
bases  his  defence  upon  one  ground,  he  is  then  estopped  from 
setting  up  other  defences.  Thus,  where  a  comptroller  was  a 
defendant  in  mandamus  proceedings  seeking  to  require  him  to 
lease  from  the  relator  certain  premises  as  directed  by  the  com- 
mon council,  and  he  set  up  as  his  defence  that  there  was  no  ap- 
propriation to  pay  the  rent,  held,  that  he  was  estopped  from 
claiming  that  it  was  not  his  duty  to  execute  the  lease,  or,  that 
the  common  council  had  no  authority  to  require  him  so  to  do. 
People  ex  rel.  Schanck  v.  GreeJie,  64  N.  Y.  503,  reversing  6  Hun, 
II.  It  was  held  upon  the  return  of  an  order  to  show  cause  why 
mandamus  should  not  issue  that  the  relator  held  the  affirmative 
on  the  argument.  Pco.w.  Tliroop,  12  Wend.  185,  note.  And  upon 
the  trial  of  issues  raised  by  the  return  to  the  alternative  writ,  the 
burden  of  proof  would  without  question  follow  the  ordinary  course 
in  actions.  On  a  demurrer  by  the  defendant  to  the  alternative 
writ,  the  demurrer  will  be  sustained  unless  the  writ  sets  forth  the 
facts  upon  which  the  relator  bases  his  claim  in  the  same  manner 
and  with  the  same  particularity  as  he  is  required  to  set  them  forth 
in  a  complaint.  Facts,  not  conclusions  of  law,  must  be  stated. 
Peo,  ex  rel.  Eganv.  The  Columbia  Club,  20  Civil  Pro.  323,  15  Supp. 
821.  But  on  demurrer  sustained,  the  relator  may  amend  on  pay- 
ment of  costs.  Peo.  ex  rel.  Egan  v.  The  Columbia  Club,  20  Civ. 
Pro.  323,  15  Supp.  821.  All  the  material  allegations  of  the 
alternative  writ,  which  are  not  traversed  or  denied,  or  success- 
fully avoided,  are  to  be  taken  as  admitted,  and  if  the  return 
contains  no  sufficient  answer,  the  relator  is  entitled  to  his  per- 
emptory writ.  Peo.  ex  rel.  Sunderlin  v.  Ovenshire,  41  Howard,  164. 
Where  the  respondent  demurs  to  one  or  more,  but  not  to  all,  of 
the  complete  statements  of  facts  in  the  writ,  a  return  may  be 
made  to  those  not  demurred  to  ;  and  if  the  relator  demurs  to  one 
or  more  but  not  to  all  of  the  complete  statements  of  facts  con- 
tained in  the  return,  an  issue  of  fact  arises  with  respect  to  the 
remainder  of  the  return.  Peo.  ex  rel.  v.  Order  of  American  Star, 
53  Supr.  66.  The  affidavits  upon  which  the  writ  is  granted  form 
no  part  of  the  record,  and  the  relator  who  holds  the  affirmative 
cannot  support  the  writ  by  his  preliminary  affidavit.  Peo.  ex  rel.  v. 
The  Coliunbia  Club,  20  Civ.  Pro.  323  ;   15  Supp.  821,  citing  Peo.  v. 


246  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Baker,  35  Barb.  109;  see,  also,  Peo  v.  Board  of  Supvrs.  of  West- 
chester, 15  Barb.  614.  But  compare  Peo.  ex  rcl.  Whiterbee  v. 
Supvrs.,  70  N.  Y.  236.  Issues  of  law  are  to  be  raised  by  de- 
murrer to  the  writ,  or  to  the  return,  or  to  any  complete  state- 
ment of  facts  contained  in  the  writ,  as  constituting  a  separate 
grievance,  or  to  any  complete  statement  of  facts  separately  as- 
signed in  the  return  as  cause  for  disobeying  the  command  of  the 
writ.  Peo.  ex  rcl.  v.  Order  of  American  Star,  53  Supr.  66.  Com- 
pare with  this  section  §  964,  Code  Civ.  Pro.,  stating  when  issues 
of  law  and  issues  of  fact  arise.  Note  that  under  this  section, 
when  the  relator  demurs  to  one  complete  statement  of  facts  set 
out  in  the  return  as  a  cause  for  disobeying  the  writ,  an  issue  of 
fact  arises  with  respect  to  the  remainder  of  the  return. 

The  relators  hold  the  affirmative  of  the  issue.  Peoples.  Ty?ier, 
24  Barb.  348.  When  issues  upon  the  return  to  a  writ  of  alter- 
native mandamus  are  submitted  to  a  jury  the  jury  may  render  a 
general  verdict,  instead  of  finding  on  the  specific  issues;  such  a 
verdict  is  a  finding  in  favor  of  the  party  upon  each  of  the  issues 
made  ;  and  in  case  such  a  verdict  is  directed  by  the  court  it  will 
be  presumed  to  have  been  rightfully  directed  in  the  absence  of 
any  evidence  to  the  contrary  ;  and  when  there  is  no  evidence 
upon  an  issue  before  the  jury,  or  the  weight  of  evidence  is  so 
decidedly  in  favor  of  one  side  that  the  court  would  set  aside  the 
verdict  as  against  evidence,  if  rendered,  it  is  the  duty  of  the 
judge  to  direct  the  jury  what  verdict  to  render.  People  v.  Board 
of  Metropolitan  Police,  35  Barb.  6/^4.  Where,  upon  application 
for  a  peremptory  mandamus  on  a  false  return,  the  material  issues 
were  found  in  favor  of  plaintiff,  the  court  held  that  the  judgment 
should  be  that  a  peremptory  mandamus  issue  to  the  defendants, 
commanding  them  to  audit  a  claim  as  commanded  by  the  alterna- 
tive writ.  People  v.  Supervisors  of  Richmond,  28  N.  Y.  112.  It 
was  held  under  former  Code,  in  35  Barb.  644,  on  appeal,  26  N.  Y. 
316,  that  although  issue  of  fact  had  been  tried  by  a  jury,  the  court 
may  grant  or  refuse  the  writ,  as  it  deems  proper.  WHiere  the 
fact  on  which  the  right  to  a  peremptory  mandamus  depends  is 
controverted,  the  issue  must  be  tried  before  the  peremptory  writ 
can  issue,  and  the  trial  must  not  be  on  conflicting  affidavits,  but 
by  a  jury.  People  v.  Green,  i  Hun,  i.  But  if  the  return  shows 
the  examination  of  a  long  account  is  involved,  a  compulsory 
reference  may  be   ordered.     People  v.     Wadsworth,  61   How.  57. 


MANDAMUS.  247 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


All  the  material  allegations  of  the  alternative  writ  not  traversed, 
denied,  or  avoided,  are  to  be  taken  as  admitted,  and  if  the  return 
contains  no  sufficient  answer,  the  relator  is  entitled  to  the  writ. 
People  v.  Ovens/lire,  41  How.  164.  This  is  of  course  subject  to 
the  rule  that  the  relator  is  not  entitled  to  a  peremptory  man- 
damus, even  upon  a  verdict  in  his  favor  on  issue  joined  on  return 
to  an  alternative  writ,  when  the  record  shows  he  has  no  legal 
right  thereto  on  the  facts.  People  v.  Batchellor,  53  N.  Y.  128, 
limiting,  People  v.  Metropolitan  Police,  26  id.  316.  The  defendant 
can  at  any  time  before  the  peremptory  writ  object  to  any  defect 
of  substance.  Id.  ;  People  v.  Green,  58  N.  Y.  295  ;  Commercial 
Bank  v.  Canal  Commissioners,  10  Wend.  25.  A  public  of^cer, 
who,  in  his  return,  bases  his  resistance  to  the  payment  of  a  claim 
on  one  ground,  is  estopped  from  setting  up  others.  People  v. 
Green,  64  N.  Y.  699.  The  death  of  one  of  several  copartners 
does  not  abate  the  writ  when  they  are  petitioners,  and  it  occurs 
after  return.     People  v.  Supervisors,  70  N.  Y.  228. 

The  peremptory  writ  must  follow  the  terms  of  the  alternative 
writ,  and  where  the  final  peremptory  writ  requires  of  the  respond- 
ent acts  of  a  different  nature  and  greater  than  those  required  by 
the  alternative  writ,  the  variance  is  fatal,  and  the  writ  will  be 
dismissed  upon  appeal.  Peo.  ex.  rel.  v.  Gilroy,  60  Hun,  507,  39 
St.  Rep.  526,  15  Supp.  242. 

But  it  was  subsequently  held  in  Peo.  ex  rel.  Keene  v.  Supvrs.y 
142  N.  Y.  278,  that  the  court,  in  awarding  the  peremptory  writ, 
may  mould  it  according  to  the  just  rights  of  all  the  parties;  so 
held  upon  a  demurrer  to  an  alternative  writ.  The  respondent 
contending  that  the  relator  asked  too  much,  the  court  said  : 
"  The  alternative  writ  is  now  equivalent  to  the  complaint  in 
an  action,  and  the  demurrer  and  return  stand  as  a  demurrer  or 
answer  in  an  ordinary  suit.  If  a  substantial  right  is  set  out  in  the 
writ  the  proceeding  will  not  fail  because  the  relator  asks  for  too 
much,  or  mistakes  to  some  extent  the  relief  to  which  he  is  en- 
titled." And  again  in  Peo.  ex  rel.  Greene  v.  D.  &  C.  R.  R.  Co., 
58  N.  Y.  157,  it  was  said,  that  not  every  variance  between  the 
alternative  and  the  peremptory  writ  of  mandamus  will  cause  the 
latter  to  be  set  aside.  Where  the  substance  of  the  two  writs  is 
the  same,  both  commanding  the  doing  of  the  same  act  but  dif- 
fering in  some  immaterial  matter  of  detail,  as  to  the  method  of 
doing  it,  and    where    the    act    is    one    the   defendant  is  legally 


248  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

obligated  to  do,  and  the  variance  i.s  to  his  ease,  not  to  his  distress, 
the  peremptory  writ  will  be  sustained.  See,  also,  Peo.  ex  rel. 
Henry  v.  Nostrand,  46  N.  Y.  377,  where,  upon  a  motion  for 
a  peremptory  writ,  it  was  held  that  the  court  could  issue  the 
peremptory  writ,  for  any  relief  to  which  the  relator  was  en- 
titled, although  not  specified  in  the  moving  papers,  if  those 
papers  contained  the  usual  request  "  or  for  other  relief." 
Query.  As  to  whether  this  course  would  have  been  followed 
if  an  alternative  writ  had  issued  first,  and  the  case  been  heard 
upon  issues  of  law  and  fact  joined  upon  the  return.  Peo.  ex  rel. 
Henry  v.  Nostrand,  46  N.  Y.  377. 

Where  a  peremptory  writ  is  issued  to  compel  a  common  carrier 
to  perform  its  duties,  it  should  require  the  company  to  exercise 
its  franchise  and  to  receive  and  transport  freight  upon  such  terms 
as  are  reasonable  and  usual  and  to  perform  its  duties  as  a  com- 
mon carrier.  Peo.  v.  N.  V.  C.  &  H.  R.  R.  Co.,  28  Hun,  559;  Peo. 
V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  3  Civ.  Pro.  1 1,  reversing  2  Civ.  Pro. 
82, 63  Howard,  291.  In  this  case  at  Special  Term,  it  was  held  that 
the  peremptory  writ  when  issued  should  clearly  and  distinctly 
state  the  act  or  duties  which  are  by  it  commanded  to  be  per- 
formed, so  that  the  party  to  whom  it  is  addressed  may  distinctly 
understand  what  he  is  to  do  ;  but  the  General  Term  held  it  suffi- 
cient for  the  writ  to  require  the  common  carrier  to  resume  its 
duties  as  such,  and  that  there  was  no  necessity  for  the  writ  to 
specify  what  kind  of  goods  should  be  received  and  carried,  etc. 
Peo.  ex  rel.  H of  man  v.  Tedcastle,  12  Misc.  468,  68  St.  Rep.  135, 
34  Supp.  257.  It  was  held  that  a  peremptory  writ  issuing  to  a 
corporation,  having  a  discretion  as  to  the  manner  of  performing 
the  duty,  should  point  out  in  what  the  corporation  has  failed, 
and  direct  particularly  what  must  be  done,  so  that  it  may  not 
fail  again.  Peo.  ex  rel.  Greene  v.  D.  &  C.  R.  R.  Co.,  58  N.  Y. 
157.  As  to  when  the  mandatory  part  of  a  writ  of  mandamus 
was  held  to  be  sufficiently  definite  and  capable  of  being  obeyed, 
see  Peo.  ex  rel.  Garbutt  v.  R.  &  S.  L.  R.  R.  Co.,  y6  N.  Y.  298. 
When  the  peremptory  writ  issues,  it  must  command  precisely 
what,  and  no  more  than,  the  party  to  whom  it  is  directed  is 
legally  required  to  do.  If  it  requires  more,  the  court  on  applica- 
tion may  quash  or  amend  it  in  its  discretion  ;  and  the  exercise 
of  such  discretion  is  not  reviewable  in  the  Court  of  Appeals. 
Peo.  ex  rel.  Hasbronck  v.  Snpvrs.,  135  N.  Y.  533. 


MANDAMUS.  249 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

As  the  Statute  of  Limitations  applies  in  proceedings  by  man- 
damus, the  writ  should  enforce  only  those  parts  of  the  relator's 
claim  which  are  enforceable  under  such  statute.  See  Peo.  ex  rel. 
Byrne  v.  French,  12  Abb.  N.  C.  158.  The  mandatory  part  of  the 
writ  need  only  describe  the  thing  to  be  done  with  reasonable 
certainty,  so  that  the  defendant  will  know  what  is  required  of 
him.  Peo.  ex  rel.  Henry  v.  Nostrand,  46  N.  Y.  378.  Under  the 
act  of  1886,  providing  for  a  review  of  the  acts  of  the  excise 
board  by  mandamus,  the  issues  are  left  to  the  court,  and  it  is 
for  the  court  to  decide  in  a  summary  way,  whether  the  excise 
board  acted  arbitrarily,  and  abused  their  power ;  the  framing  of 
issues  for  trial  by  jury  is  not  contemplated  by  the  act  of  1886, 
and  cannot  be  permitted.  Peo.  ex  rel.  Ketcham  v.  Excise  Coninis., 
46  St.  Rep.  41,  18  Supp.  621,  64  Hun,  632.  Where  a  jury  trial  is 
not  waived  nor  a  reference  consented  to,  the  issues  raised  by  the 
return  to  the  alternative  writ  must  be  tried  by  the  jury  as  if  they 
were  issues  joined  in  an  action  specified  in  §  968  ;  and  under 
§  2083  either  party  is  entitled  to  a  verdict  when  he  would  be 
entitled  thereto  if  issue  were  joined  in  an  action  to  recover  dam- 
ages for  making  a  false  return.  Peo.  ex  rel.  Neftaniel  v.  Order 
American  Star,  53  Supr.  71.  The  issue  arising  on  the  return  to 
the  alternative  writ  may  be  brought  on  for  trial  in  the  same 
manner  in  which  the  issues  of  fact  joined  in  an  ordinary  case  are 
usually  brought  on,  and  it  is  not  necessary  to  have  the  issues 
distinctly  and  plainly  stated  for  trial  on  the  motion  made  under 
§  970,  or  under  the  general  rules  of  practice.  Peo.  ex  rel.  Nef- 
taniel v.  Order  American  Star,  53  Supr.  72. 

As  by  §  2082,  each  provision  of  the  Code  Civ.  Pro.  relating  to 
the  proceedings  in  an  action  applies  to  a  trial  of  issues  upon  an 
alternative  writ,  it  follows  that  a  jury  may  render  a  general  ver- 
dict under  §  1 178,  Code  Civ.  Pro.,  or  they  may  be  directed  to  file 
specially  upon  any  or  all  of  the  issues.  Peo.  ex  rel.  Neftaniel  v.. 
Order  American  Star,  53  Supr.  72.  A  verdict  upon  the  trial  of  an 
alternative  writ  must  be  returned  to,  and  the  final  order  there- 
upon must  be  made  by,  the  Special  Term  as  provided  by  §  2084, 
and  the  final  order  is  to  be  deemed  a  final  judgment  and  is  to  be 
entered  and  docketed  and  enforced  as  prescribed  by  §  2082.  Peo. 
ex  rel.  Neftaniel  v.  Order  American  Star,  53  Supr.  73. 

Where  certain  owners  of  a  manufactory  advanced  money  to  a 
sheriff  to  hire  deputies  to  enable  him   to  protect  their  property^ 


250  MANDAMUS. 


Art.   5.     Alternative  Writ  and  Proceedings  Thereon. 

and  the  sheriff  subsequently  assigned  his  claim  against  the  super- 
visors, for  the  sum  thus  advanced  to  the  owners  of  the  manufac- 
tory, it  was  held  that  where  the  return  denied  that  the  employ- 
ment of  the  deputies  hired  was  necessary,  that  an  issue  of  fact 
was  raised  which  should  have  been  tried  by  a  jury,  and  that  it 
Avas  error  for  the  court  to  direct  a  verdict.  Pco.  ex  rcl.  Nicliolas 
V.  Suprs.,  60  Hun,  387,  39  St.  Rep.  863,  15  Supp.  471. 

Where  issues  of  fact  arise,  only  the  alternative  writ  can  issue, 
and  the  issues  raised  thereon  must  be  determined  by  a  jury 
under  §  2083,  Code  Civil  Procedure,  unless  a  jury  trial  is  waived 
or  a  reference  is  directed  by  consent.  The  case  of  Pco.  ex  rel. 
Debnar  v.  St.  Louis  R.  R.  Co.,  44  Hun,  552,  should  not  be  taken 
as  authorizing  the  court  to  order  a  reference  as  to  a  disputed 
fact.  It  is  to  be  taken  only  as  holding  that  the  court  may  re- 
quire a  reference  upon  the  return  to  a  peremptory  writ  for  its 
own  information.  Peo.  ex  rel.  Hofjuan  v.  Tedcast/e,  12  Misc. 
469-470,  68  St.  Rep.  135,  34  Supp.  257.  Under  the  provisions 
of  the  Revised  Statutes  regulating  procedure  by  mandamus 
(2  R.  S.  587,  §  57),  providing  that  where  issue  is  taken  upon 
a  return  to  a  writ  of  alternative  mandamus,  in  case  a  verdict 
shall  be  found  for  the  relator,  he  shall  recover  damages  and 
costs  in  like  manner  as  in  an  action,  etc.,  and  that  a  peremp- 
tory writ  shall  be  granted  to  him  without  delay,  it  was  held 
that  such  verdict  did  not  entitle  the  relator  to  a  peremp- 
tory writ  where  the  record  shows  that  he  had  no  legal  right 
thereto.  Peo.  ex  rel.  D.,  etc.,  R.  R.  Co.  v.  Batchellor,  53  N.  Y. 
137.  The  statement  in  §  2082,  that  the  "  final  order  "  is  to  be 
deemed  a  final  judgment  is  not  restricted  to  the  final  order 
awarded  on  the  hearing  of  the  alternative  writ,  but  will  be  taken 
to  cover  the  order  awarding  a  peremptory  writ  by  motion  in  the 
first  instance,  and  therefore  the  relator  is  entitled  to  have  his 
damages  awarded  under  §  2088  of  the  Code  Civ.  Pro.,  where  a 
peremptory  writ  was  issued  in  the  first  instance.  Peo.  ex  rcl. 
Goring  v.  Wappingcr  Falls,  151  N.  Y.  388,  reversing  same  case 
91  Hun,  317,  13  Misc.  732,  69  St.  Rep.  592.  The  opinion  of  the 
lower  court  may  be  referred  to  for  a  statement  of  the  practice 
under  the  common  law,  and  the  changes  made  therein  by  the 
Code  of  Civ,  Pro. 

The  rules  relating  to  discretionary  orders  in  actions  apply  also 
to  proceedings  by  mandamus;  so  held  upon  one  applying  to  be 


MANDAMUS.  251 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

let  in  as  a  party  to  a  peremptory  writ.  This  decision  apparently 
rests  upon  a  construction  of  that  portion  of  §  2082  which  states 
that  "each  provision  of  this  act  [Code  Civ.  Pro.]  relating  to 
the  proceeding  in  an  action  applies"  to  the  trial  of  an  alter- 
native writ.  Ill  re  Bohnct  v.  The  Mayor,  etc.,  of  New  York, 
150  N.  Y.  280. 

When  the  relator  upon  an  alternative  writ  of  mandamus 
moved  at  the  close  of  the  trial  upon  the  writ  and  return  and 
supplementary  return  thereto  and  upon  the  findings  of  fact,  for 
a  peremptory  writ,  it  was  held,  that  when  upon  the  whole  case 
the  right  of  the  relator  to  the  relief  demanded  is  doubtful,  the 
application  for  the  peremptory  writ  should  be  denied.  Peo.  ex 
rel.  N.  V.  Underground  Ry.  v.  Newton,  19  Civ.  Pro.  417.  It  has 
been  held  that  when  parties  by  the  adoption  of  an  agreed  state- 
ment of  facts  move  for  a  peremptory  writ  in  a  case  in  which, 
but  for  such  agreed  statement  of  facts,  an  alternative  writ  would 
be  necessary,  that  the  motion  must  be  deemed  a  special  proceed- 
ing and  not  an  action,  and  that  therefore  the  right  to  costs  are 
discretionary.  Peo.  v.  N.  V.,  L.  E.  &  W.  R.  R.  Co.,  47  Hun,  44. 
A  verdict  on  the  issues  raised  by  an  alternative  writ  of  manda- 
mus should  not  be  disregarded  in  the  absence  of  a  motion  for  a 
new  trial,  in  a  case  where,  though  the  evidence  is  conflicting,  there 
is  ample  evidence  to  sustain  the  verdict ;  and  it  was  also  held 
that  it  was  not  ground  for  setting  the  verdict  aside  because  the 
jury,  in  answer  to  a  question  they  put  to  the  court  as  to  whether 
the  court  would  be  absolutely  bound  by  the  verdict,  were  told 
that  it  would  not  be  absolutely  bound.  The  verdict  would  have 
been  reviewable  on  a  motion  for  a  new  trial.  Peo.  ex  rel.  Kruse 
V.  Woodman,  23  St.  Rep.  89,4  Supp.  555,  afifirmed,  without 
opinion,  123  N.  Y.  634. 

It  should  be  noted  that  this  decision  was  given  in  a  case  arising 
under  Laws  1886,  chap.  496,  providing  for  a  review  of  the  action 
of  a  board  of  excise  by  mandamus,  providing  that  in  effect  the 
court  or  judge  shall  determine  the  issues  upon  the  trial.  See  Peo. 
ex  rel.  Kunse  v.  Woodman,  on  the  first  appeal,  16  St.  Rep.  717, 
I  Supp.  335.  On  this  first  appeal  it  was  held  that  the  submission 
of  issues  of  fact  to  the  jury  was  only  to  assist  the  court  in  ascer- 
taining the  facts  in  controversy,  and  did  not  preclude  the  court 
from  making  a  determination  on  the  whole  record,  for  the  act 
under  which  the   proceeding  was   maintained,  Laws    1886,  chap. 


252 


MANDAMUS. 


Art.   5.     Alternative  Writ  and  Proceedings  Thereon. 


496,  provided  in  effect,  that  the  court  shall  determine  the  issues 
on  the  hearing.  Peo.  ex  rel.  Kimsc  v.  Woodman,  16  St.  Rep.  717, 
I  Supp.  335.  In  connection  with  §§  2082,  2083,  providing  for  a 
trial  of  issues  on  the  alternative  writ,  see  also  §§  2084,  2085,  as 
to  the  proper  place  of  trial. 

Section  792,  Code  Civil  Procedure,  gives  a  preference  to  the 
writ  of  mandamus  in  certain  cases,  over  any  of  the  causes  speci- 
fied in  §  791.      The  provision  is  as  follows  : 

§  792.     [Am'd,  1895.]     Preference  m  mandamus  or  prohibition. 

Where  a  writ  of  mandamus  or  of  prohibition  has  been  issued  from  the  appel- 
late division  of  the  Supreme  Court,  to  a  Special  Term,  or  a  judge  of  the  same  court, 
the  cause  may,  in  the  discretion  of  the  court,  or,  where  an  appeal  is  taken  therein 
to  the  Court  of  Appeals,  in  the  discretion  of  that  court  be  preferred  over  any  of  the 
causes  specified  in  the  last  section. 

L.  1895,  ch-  946. 

See,  under  this  section,  Pea.  ex  rcl.  v.  Myers,  50  Hun,  482. 

Compare,  also,  Peo.  ex  rel.  Davenport  v.  Rice,  68  Hun,  26,  52 
St.  Rep.  51,  22  Supp.  632,  where  the  court,  in  construing  §§  2068, 
2084,  upon  an  application  for  a  peremptory  writ,  said,  without 
passing  upon  the  point  however,  that  when  the  material  facts 
occurred  some  in  the  first  judicial  district  and  some  in  the  third 
judicial  district,  that  the  Special  Term  in  the  first  district  had 
under  the  sections  jurisdiction  to  entertain  the  application.  The 
inference  seems  to  be  that  under  the  circumstances  an  alterna- 
tive writ  would  be  triable  in  the  proper  county  of  either  de- 
partment under  §  2084. 

Where  the  alternative  writ  is  issued  and  the  facts  developed 
on  trial,  the  order  may  award  such  final  writ  as  the  facts  war- 
rant. This  on  the  ground  that  the  proceedings  are  made 
analogous  to  those  in  an  action,  and  the  judgment  may  therefore 
be  consistent  with  the  facts  proven.  People  ex  rel.  Broderiek  v. 
Morton,  24  App.  Div.  567.  But  as  to  damages  the  Court  of 
Appeals  says :  "  It  is  true  that  the  sections  of  the  Code 
(§§  2082,  2088)  contemplate  the  issuing  of  an  alternative  writ 
of  mandamus  and  due  proceedings  thereunder  which  result  in 
the  order  for  the  peremptory  writ,  but  it  would  be  a  narrow 
and  unreasonable  construction  of  these  provisions  to  hold  that 
the  order  granting  the  peremptory  writ,  after  a  litigation  in 
the  nature  of  an  action  under  §2082,  carries  with  it  greater  advan- 
tages or  rights,  than  a  similar  order  entered  upon  motion.     Peo- 


MANDAMUS.  253 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 


pie  ex  rel.  Goring  v.  Wappingers  Falls,  151  N.  Y.  389.  See  the 
opinion  in  the  Supreme  Court  on  an  appHcation  for  assessment 
of  damages  after  the  opinion  in  the  above  proceeding.  People 
ex  rel.  Goring  v.   Wappifigers  Falls,  20  Misc.  27. 

Order  for  Peremptory  Writ  Following  Alternative  Writ  Issued 

in  First  Instance. 

At  a    Special  Term  of  the  Supreme  Court  held    at  the    court-house  in 

the  city  of  Brooklyn,  on  the  26th  day  of  April,  1887  : 
Present : — Hon.  Charles  F.  Brown,  Justice. 


People  ex  rel.  Thomas  R.  Deverell, 

agst. 

The  Musical  Mutual  Protective  Union. 


118  N.  Y.  loi. 


The  relator  herein  having,  on  the  7th  day  of  August,  1885,  procured 
an  alternative  writ  of  mandamus  requiring  the  respondent  to  restore  him 
to  his  rights  and  privileges  as  a  member  of  said  respondent  corporation, 
and  said  writ  having  been  duly  served,  and  the  respondent  having  made 
a  return  to  said  writ,  and  the  issues  raised  by  said  writ,  and  the  said 
return  having  come  on  to  be  tried  at  a  circuit  of  this  court  for  the  county 
of  Kings,  on  the  25th  day  of  March,  1886,  and  it  having  been  agreed 
by  the  parties  that  the  issue  should  be  taken  from  the  jury  and  decided 
by  the  court,  and  due  deliberation  having  been  had,  and  the  court  having 
duly  made  and  filed  its  findings  of  fact  and  conclusions  of  law,  on  motion 
of  Eugene  Fisher,  attorney  for  the  relator, 

It  is  now  hereby  ordered,  adjudged,  and  decreed,  that  a  writ  of 
peremptory  mandamus  do  forthwith  issue  out  of  this  court  commanding 
the  said  respondent,  The  Musical  Mutual  Protective  Union,  to  restore 
the  relator,  Thomas  Deverell,  to  his  rights  and  privileges  as  a  member 
of  said  Union. 

It  is  further  ordered,  adjudged,  and  decreed,  that  the  relator,  Thomas 
R.  Deverell,  recover  from  the  respondent.  The  Musical  Mutual  Protective 
Union,  the  sum  of  $400  damages  and  $50  costs  and  disbursements, 
amounting  in  the  aggregate  to  the  sum  of  %\^o,  and  that  he  have  exe- 
cution therefor. 

Sub.  4.  Precedents  for  Proceedings  on  Alternative  Writ. 

The  following  precedents  are  given  for  proceedings  on  writ  of 
alternative  mandamus,  from  a  case  arising  as  to  legislative  print- 
ing, and  are  here  grouped  for  convenience  instead  of  being  given 
under  separate  sections.  They  give  the  proceedings  where  a 
peremptory  writ  is  asked  for  and  an  alternative  writ  awarded 
and  trial  had. 


254  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Petition  for  Writ. 

To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  the  Argus  Company  respectfully  shows  : 

I.  That  it  is  a  corporation  duly  organized,  and  existing  under  and  by 
virtue  of  the  laws  of  this  State. 

II.  That  heretofore,  and  at  least  twenty  days  previous  to  the  15th 
day  of  December,  1885,  the  comptroller  and  secretary  of  State  caused 
to  be  published,  as  provided  for  in  §  i  of  chapter  215  of  the  Laws 
of  188 1,  a  notice  that  sealed  proposals  would  be  received  for  doing  the 
public  or  legislative  printing  for  two  years,  from  January  i,  1886. 

That  during  the  time  when  such  publication  was  made,  and  down  to 
and  including  December  31,  1885,  Joseph  B.  Carr  was  such  secretary 
of  State,  and  Alfred  C.  Chapin  was  comptroller  of  the  State  of  New  York. 

That  said  secretary  and  comptroller  duly  met  at  the  time  appointed 
and  opened  the  bids  received  pursuant  to  said  notice,  and  said  public 
officers  could  not  agree  upon  the  person  or  corporation  to  whom  the 
award  for  such  printing  should  be  made. 

That  on  the  31st  day  of  December,  1885,  the  said  secretary  and 
comptroller  could  not  come  to  an  agreement,  and  on  said  date  the  terms 
of  office  of  said  secretary  and  comptroller  expired.  That  on  the  ist 
day  of  January,  1886,  Frederick  Cook  was  the  duly  qualified  secretary  of 
State  and  the  successor  of  said  Carr  as  such  secretary,  and  Alfred  C. 
Chapin,  the  duly  qualified  comptroller  of  said  State  and  his  own  suc- 
cessor in  said  office.  That  on  said  ist  day  of  January,  1886,  the  said 
secretary  of  State  and  said  comptroller  met  and  considered  such  bids, 
and  awarded  and  executed  the  contract  for  doing  the  public  and  legis- 
lative printing  for  the  term  of  two  years,  from  January,  1886,  to  the 
relator. 

A  copy  of  said  contract,  which  was  duly  executed  by  the  relator,  is 
hereto  annexed  and  marked  "  A,"  and  forms  a  part  hereof. 

III.  That  by  the  statutes  of  this  State,  especially  chapters  215  and 
621  of  the  Laws  of  1881,  it  is  among  other  things  therein  provided  that 
it  should  be  the  duty  of  the  person  to  whom  the  contract  to  do  the 
public  or  legislative  printing  should  be  awarded  to  print  seven  hundred 
and  nineteen  copies  of  the  journals  of  each  house,  as  the  same  shall 
from  time  to  time  be  delivered  to  him  by  the  clerks  of  the  senate  and 
assembly  respectively. 

Also  to  print  seven  hundred  and  nineteen  copies  of  the  messages 
from  the  governor,  reports  of  standing  or  select  committees,  and  reports 
and  communications  made  in  pursuance  of  laws,  or  of  a  resolution  of 
either  house,  which  matters  are  generally  known  as  "  documents," 
whenever  ordered  by  the  house  to  which  such  message,  report,  or  com- 
munication shall  be  made.  Also  to  print  for  the  use  of  the  members  of 
the  legislature  during  its  session,  six  hundred  and  forty  copies  of  every 
bill,  the  printing  of  which  shall  be  ordered  by  either  house.  And  it  was 
further  provided,  that  tlie  said  bills  and  journals  should  be  printed  and 
distributed  by  the  said  printer  within  forty-eight  hours  after  the  same 
were  placed  in  his  hands. 


MANDAMUS.  255 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

That  Charles  A.  Chickering  is  the  clerk  of  the  assembly  of  this  State, 
and  has  the  custody,  control,  and  possession  of  the  bills  introduced  in 
the  assembly  and  ordered  printed,  and  is  the  keeper  and  custodian  of 
the  journal  of  the  assembly ;  that  since  the  making  of  the  said  contract 
with  the  petitioner  the  said  clerk  has  kept  and  has  in  his  possession  the 
journal  of  the  assembly  of  this  State,  and  various  bills  introduced  into 
that  body  ordered  to  be  printed,  and  numerous  messages,  reports,  and 
documents  duly  ordered  to  be  printed  ;  that  the  petitioner  is  advised  by 
his  counsel  that  it  is  the  duty  of  said  clerk  to  deliver  the  said  journal 
and  the  said  bills  and  documents  to  the  petitioner  to  be  printed  under 
its  contract,  and  that  it  is  a  matter  of  public  concern  that  such  matter 
be  promptly  printed  under  the  contract  and  by  the  petitioner. 

IV.  That  said  Charles  A.  Chickering  has  been  heretofore  duly  re- 
quested by  your  petitioner  to  deliver  and  convey  to  it  the  journals,  bills, 
and  "  documents  "  of  said  body,  and  the  materials  and  "  copy  "  thereof 
and  therefor,  for  the  printing  of  the  same  in  accordance  with  said  con- 
tract, but  he  has  refused  and  neglected  so  to  do,  and  still  neglects  and 
refuses  to  do  so,  in  neglect  and  violation  of  his  duty. 

Wherefore,  your  petitioner  asks  that  a  peremptory  writ  of  mandamus 
may  issue  out  of  this  court,  directed  to  said  Charles  A.  Chickering,  clerk 
of  the  assembly  of  this  State,  and  his  assistants  and  subordinates,  to  de- 
liver, or  cause  to  be  delivered  to  your  petitioner,  the  journals,  bills,  and 
documents  of  said  body,  and  the  material  and  "  copy  "  thereof  and 
therefor,  for  the  printing  and  delivery  of  the  same  in  accordance  with 
the  provisions  of  said  contract. 

THE  ARGUS  COMPANY, 

Dated  Albany,  Feb'y  17,  1886.      Per  W.  H.  JOHNSON,  Manager. 

(  ^dd  verification  as  to  cofnplaint.) 

Order  to  Show  Cause. 

SUPREME  COURT. 


In  the  Matter  of  the  Application  of  the  Argus 
Company  for  a  Writ  of  Mandamus. 


On  the  foregoing  papers  let  Charles  A.  Chickering,  clerk  of  the 
assembly  of  the  State  of  New  York,  show  cause  at  a  Special  Term  of 
the  Supreme  Court  to  be  held  at  the  chambers  of  Mr.  Justice  Ingalls,  in 
the  city  of  Troy,  on  the  first  Monday  of  February,  1886,  why  a  writ  of 
peremptory  mandamus  should  not  issue  out  of  this  court,  directing  him 
and  his  assistants  and  subordinates,  and  all,  each  and  every  person  who 
acts  in  that  capacity,  to  deliver  to  the  Argus  Company,  the  petitioner 
herein,  the  bills,  journals,  and  documents  of  the  assembly  of  this  State, 
and  the  material  and  "  copy  "  thereof  and  therefor  for  the  printing  of 
the  same,  in  accordance  with  the  requirements  of  the  law,  or  for  such 
other  and  further  order  in  the  matter  as  to  the  court  may  seem  proper. 

Service  of  this  order  less  than  eight  days,  and  on  or  before  the  29th 
day  of  January,  1887,  to  be  sufficient.  R.  W.   PECKHAM. 

Albany,  Jan'y  28,  1886.  yustice  Supreme  Court. 


256  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Affidavit  to  Oppose  Application  for  Peremptory  Writ. 

SUPREME  COURT. 


In  the  Matter  of   the  Apphcation  of  the  Argus 
Company  for  a  Writ  of  Mandamus. 

City  and  County  of  Albany,  ss.  : 

John  D.  Parsons,  of  said  city  and  county,  being  duly  sworn,  says  that 
he  denies  that  a  copy  of  the  contract  annexed  to  the  petition  herein  was 
duly  or  legally  executed  or  signed  by  the  Hon.  A.  C.  Chapin,  comp- 
troller, or  Frederick  Cook,  secretary  of  State,  or  by  said  Argus  Com- 
pany, or  that  the  same  is  a  legal  or  valid  contract. 

Deponent  further  alleges  and  states  that  the  comptroller  signed  and 
executed  said  contract  December  31,  1885  ;  that  the  secretary  of  State 
did  not  become  such  or  sign  said  contract  until  January  i,  1886  ;  de- 
ponent further  denies  that  after  said  secretary  of  State  became  such,  the 
secretary  of  State  and  comptroller  met  and  considered  the  said  contract, 
or  the  propriety  of  making  the  same,  or  the  facts  relative  to  the  propri- 
ety of  making  the  same,  as  they  were  required  by  law  to  do,  and  alleges 
that  they  did  not  meet  and  consider  said  contract  or  the  propriety  of 
making  the  same,  or  the  facts  relative  thereto  or  affecting  the  same. 

That  these  denials  and  allegations  are  made  upon  information  and 
belief,  and  upon  statements  and  evidence  under  oath,  by  said  comp- 
troller and  secretary  of  State  as  witnesses  before  joint  committees  of  the 
senate  and  assembly. 

That  the  firm  of  Weed,  Parsons  &  Co.  duly  made  and  delivered  to 
the  secretary  of  State  and  comptroller,  on  or  about  the  15  th  day  of  De- 
cember, 1885,  sealed  proposals  for  the  printing  provided  to  be  done 
under  the  said  law  of  1881,  for  two  years,  commencing  on  the  first  day 
of  January  thereafter,  in  accordance  with  the  said  law  and  the  adver- 
tisement for  proposals ;  that  the  amount  of  their  said  bid  and  proposals 
is  correctly  stated  in  schedule  "  A,"  and  under  and  following  their 
name,  which  bid  and  proposal  of  said  firm  was  the  lowest  offer  or  bid 
to  do  such  printing  of  any  of  the  offers  or  bids  delivered  to  or  received 
by  the  said  secretary  of  State  and  comptroller  therefor.  That  said 
Weed,  Parsons  &  Co.  gave  security  in  a  bond  to  the  people  of  the  State 
of  New  York,  to  the  satisfaction  of  the  secretary  of  State  and  comp- 
troller, for  the  faithful  performance  of  the  contract  for  such  printing, 

(/ura/.)  (^  Signature.) 


MANDAMUS.  257 


•*# 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

Order  for  Alternative  Writ  of  Mandamus. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  City  Hall,  in  the 

city  of  Albany,  on  the  23d  day  of  February,  1886  : 
Present : — Hon.  William  L.  Learned,  jfustice. 


In  the   Matter  of  the  Apphcation  of  the  Argus 

Company  for  a  Writ  of  Mandamus, 

agst. 

Charles  A.  Chickering,  as  Clerk  of  the  Assembly 

of  the  State  of  New  York. 

On  reading  and  filing  the  petition,  order  to  show  cause,  orders  of 
adjournment  to  this  term,  and  amended  petition  on  the  part  of  the  peti- 
tioner, and  the  affidavits  of  John  W.  Vrooman  and  Charles  A.  Chicker- 
ing and  John  D.  Parsons,  and  after  hearing  Samuel  Hand  and  S.  W. 
Rosendale,  for  the  petitioner ;  Hamilton  Harris  and  N.  C.  Moak,  for 
the  defendants,  opposed  ;  it  is 

Ordered,  that  an  alternative  mandamus  issue  out  of  and  under  the 
seal  of  this  court,  directed  to  said  defendant,  commanding  him  and  his 
assistants  and  subordinates  to  deliver,  or  cause  to  be  delivered,  to  the 
Argus  Company,  the  relator,  the  journals,  bills,  and  documents  of  the 
assembly  and  senate  respectively,  and  the  material  or  "  copy  "  thereof 
and  therefor,  for  the  printing  and  delivering  of  the  same  in  accordance 
with  the  provisions  of  the  contract  in  the  petition  referred  to. 

Enter  in  Albanv  County.  W.  L.  LEARNED, 

yustice  Supreme  Court. 

Alternative  Writ. 

The  People  of  the  State  of  New  York,  on  the  relation  of  the  Argus  Com- 
pany, to  Charles  A.  Chickering,  Clerk  of  the  Assembly  of  the  State 
of  New  York,  greeting  : 

Whereas,  As  is  alleged  by  the  Argus  Company  of  the  city  of  Albany 
(here  insert  substantially  and  in  form,  as  in  a  pleading,  the  allegations 
of  the  petition,  by  which  the  proceeding  was  commenced)  ;  and 

Whereas,  An  order  was  made  by  this  court,  on  the  28th  day  of  Jan- 
uary, 1886,  commanding  you  to  show  cause  why  a  writ  of  peremptory 
mandamus  should  not  issue  out  of  this  court,  directing  you  to  comply 
with  the  prayer  of  the  petition  made  by  said  Argus  Company  (recite 
prayer) ;    and 

Whereas,  On  the  23d  day  of  February,  1886,  you  filed  affidavits  in 
this  court  denying  some  of  the  material  facts  set  out  in  such  petition, 
and  an  order  was,  therefore,  made,  directing  that  an  alternative  writ  of 
mandamus  issue  as  therein  set  forth  at  length  : 

Now,  therefore,  we  being  willing  that  full  and  speedy  justice  be  done 
in  this  behalf  to  it,  the  Argus  Company,  do,  therefore,  command  you, 
that  immediately  after  the  receipt  of  this  writ,  you,  your  assistants,  and 
subordinates  deliver,  or  cause  to  be  delivered,  to  the  Argus  Company, 
the  relator,  the  journals,  bills,  and  documents  of  the  assembly,  and  the 
17 


258  MANDAMUS. 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon, 

matter  or  "  copy  "  thereof  and  therefor,  for  the  printing  and  delivery  of 
the  same,  in  accordance  with  the  provisions  of  the  contract  in  the  peti- 
tion referred  to ;  or  that  you  show  cause  why  the  command  of  the  writ 
ought  not  to  be  obeyed,  and  that  you  make  return  of  this  writ,  pursuant 
to  §  2072  of  the  Code  of  Civil  Procedure,  within  twenty  days  after 
service  hereof  upon  you,  lest  complaint  shall  again  come  to  us  by  your 
default. 

Witness,    Hon.  William  L.    Learned,    justice    of   the    Supreme 
[l.  s.]       Court,  at  the  court-house  in  the  city  of  Albany,  on  the  23d 
day  of  February,  1886.  ROBERT  H.  MOORE, 

ROSENDALE  &  HESSBERG,  Clerk. 

Attorneys  for  Petit io7ier. 
Indorsed :— "  By  order  of  the  court.        ROBERT  H.  MOORE, 

"  Clerk:' 

Return  to  Alternative  Writ  of  Mandamus. 


The  People  of  the  State  of  New  York  ex  rel. 
the  Argus  Company 


agst. 

Charles   A.  Chickering,   as   Clerk   of   the  As- 
sembly of  the  State  of  New  York. 

Charles  A.  Chickering,  clerk  of  the  assembly  of  the  State  of  New 
York,  returns  and  answers  to  the  alternative  writ  of  mandamus,  a  copy 
of  which  is  hereto  annexed,  that  (here  insert  facts  set  out  in  affidavits 
in  answer  to  application  for  peremptory  writ). 

Wherefore,  this  defendant  asks  that  the  prayer  of  the  petitioner,  as 
set  forth  in  the  alternative  writ,  be  denied   and  the  proceedings   dis- 
missed. CHARLES  A.  CHICKERING. 
HARRIS  &  RUDD, 

Defendanf s  Attorneys. 

Decision  on  TriaL 

At  a  term  of  the  Circuit  Court  of,  in,  and  for  the  county  of  Albany,  held 
at  the  city  of  Albany,  on  the  i6th  day  of  December,  1886  : 

Present : — Hon.  Charles  R.  Ingalls,  Justice. 


The  People  of  the  Slate  of  New  York,  on  the 
relation  of  the  Argus  Company, 

agst. 

Charles  A.  Chickering,   as   Clerk   of   the   As- 
sembly of  the  State  of  New  York. 

The  above-entitled  proceeding  having  been  reached  in  its  order  on  the 


MANDAMUS.  259 


Art.  5.     Alternative  Writ  and  Proceedings  Thereon. 

calendar,  and  a  jury  trial  having  been  waived  by  the  parties,  Messrs. 
Rosendale  &  Hessberg,  and  E.  Countryman,  Esq.,  appearing  for  the 
relators,  and  Hamilton  Harris  and  N.  C.  Moak,  Esq.,  appearing  for  the 
defendants,  the  relator  having  presented  and  rested  his  case,  and  the 
defendant  having  rested  his  case,  and  the  facts  being  all  presented  to 
the  court,  and  the  proceedings  having  been  tried  and  submitted,  I  do 
find  and  decide  as  follows : 

Facts. 

I.  That  the  allegations  in  the  alternative  writ  of  mandamus  are  cor- 
rect and  true,  and  the  facts  are  herein  correctly  set  forth. 

II.  That  the  legislative  printing  for  1886  was  done  by  Weed,  Parsons 
&  Co.,  under  and  pursuant  to  the  resolutions  respectively  of  the  senate 
and  assembly,  pending  the  determination  of  the  questions  involved  in 
these  proceedings.  The  said  Weed,  Parsons  &  Co.  claimed  to  have  a 
contract  for  legislative  printing  signed  by  Joseph  B.  Carr,  secretary  of 
State,  on  December  31,  1885,  which  paper  was  introduced  and  read  in 
evidence,  signed  by  said  Carr. 

III.  That  provisions  are  now  made  by  law  for  future  legislative 
printing,  after  the  expiration  of  the  present  contract,  dififerent  from  that 
under  which  the  contract  in  question  was  made. 

Conclusions  of  Law. 

That  plaintiff,  relator  in  the  above-entitled  proceeding,  is  entitled  to, 
and  that  a  peremptory  writ  of  mandamus  forthwith  issue  in  the  above- 
entitled  proceeding  to  the  defendant  and  his  successors  in  office,  re- 
quiring and  commanding  them  to  deliver  for  and  during  the  year  1887, 
to  the  Argus  Company,  under  and  pursuant  to  the  contract  referred  to 
in  the  alternative  writ  herein,  with  said  Argus  Company,  all  matter  and 
copy  for  the  printing  to  be  done  under  said  contract  and  pursuant  to 
law.  CHARLES  R.  INGALLS, 

Justice  Supreme  Court. 

Final  Order  for  Peremptory  Mandamus. 

1  Term  of  the  Supreme  Court,  h 
,  on  the  1 6th  day  of  December, 

Present : — Hon.  Charles  R.  Ingalls,  Justice. 


At  a  Special  Term  of  the  Supreme  Court,  held  in  and  for  the  county  of 
Albany,  on  the  i6th  day  of  December,  1886  : 


The  People  of  the  State  of  New  York,  on  the 
relation  of  the  Argus  Company, 

agst. 

Charles  A.  Chickering,  as  Clerk  of  the  Assem- 
bly of  the  State  of  New  York. 


The  above-entitled  proceeding  having  been  reached  in  its  order  on  the 
calendar,   at  a  Circuit  Court  held  this  day,  in  and  for  the  coimty  of 


26o  MANDAMUS. 


Art.  6.     Defences  to  Mandamus. 


Albany,  and  a  jury  trial  having  been  waived  by  the  parties,  Messrs. 
Rosendale  «&  Hessberg  and  E.  Countryman  Esq.,  appearing  for  the  re- 
lator, and  Hamilton  Harris  and  N.  C.  Moak,  Esq.,  appearmg  for  the 
defendants,  the  relator  having  presented  and  rested  his  case,  and  the 
defendant  having  presented  his  case,  and  the  facts  having  been  all 
presented  to  the  court,  and  the  decision  of  Hon.  C.  R.  Ingalls,  justice 
presiding  at  said  court,  and  who  tried  said  proceedings,  being  now  duly 
presented  and  filed,  whereby  he  finds  that  relator  is  entitled  to  a  per- 
emptory mandamus ;  and  it  appearing  that  the  legislative  printing  for 
1886  was  done  by  Weed,  Parsons  &  Co.,  under  and  pursuant  to  the 
resolutions,  respectively,  of  the  senate  and  assembly,  pending  the  de- 
termination of  the  questions  involved  in  these  proceedings,  and  pro- 
vision being  now  made  by  law  for  future  legislative  printing  after  the 
expiration  of  the  present  contract,  different  from  that  under  which  the 
contract  in  question  was  made :  It  is  on  motion  of  Rosendale  &  Hess- 
berg, attorneys  for  said  relator,  Messrs.  Harris  and  Moak,  aforesaid, 
appearing  for  defendants ; 

Ordered  that  a  peremptory  writ  of  mandamus  forthwith  issue  in  the 
above-entitled  proceeding  to  the  above  defendant  and  his  successors  in 
office  respectively,  requiring  and  commanding  them  to  deliver,  for  and 
during  the  year  1887,  to  the  Argus  Company,  under  and  pursuant  to 
the  contract  referred  to  in  the  alternative  writ  herein  with  said  Argus 
Company,  all  matter  and  copy  for  the  printing  to  be  done  by  said  com- 
pany under  said  contract,  and  pursuant  to  law. 

Enter.  C.  R.  INGALLS, 

Justice  Supreme  Court. 

ARTICLE  VL 
Defences  to  Mandamus. 

Objections  to  the  granting  of  a  peremptory  writ  may  be  made 
on  argument  and  after  an  alternative  writ  has  been  served  upon 
the  respondent ;  he  must  either  demur  thereto  under  §  2076 
of  the  Code,  or  make  his  return  showing  either  that  the  act  has 
been  performed  pursuant  to  the  requirements  of  the  alternative 
writ,  or  setting  forth  facts  which  constitute  a  defence. 

The  following  are  some  of  the  principal  lines  of  defences  in 
mandamus  to  be  taken  by  objection  on  argument  for  peremptory 
writ,  or  by  demurrer,  when  the  defence  is  apparent  upon  the  face 
of  the  alternative  writ,  or  that  may  be  raised  as  questions  of  fact 
by  the  return.  It  is  not  attempted  to  collate  all  the  defences 
which  have  been  upheld  by  the  courts  of  this  State,  but  only  to 
indicate  the  general  lines  of  such  defence,  and  to  indicate  the 
principles  which  may  be  applied  by  a  practitioner  to  the  case  in 
hand. 


MANDAMUS.  261 


Art.  6.     Defences  to  Mandamus. 


Mandamus  may  be  defended  on  the  following  grounds  : 
That  it  is  issued  to  a  person,  officer,  or  board  to  control  a  dis- 
cretion conferred  by  law  upon  them.  Hull  v.  Supervisors  of 
Oneida,  19  Johns.  259;  People  v.  SeJiool  Officers,  18  Abb.  Pr.  165  ; 
Ex  parte  Benson,  7  Cow.  353;  Ex  parte  Coster,  7  Cow  en,  523; 
People  V.Judges  of  Chataiiqua,  i  Wend.  73  ;  People  v.  Superior 
Court,  19  Wend.  701  ;  People  ex  rel.  Harris  v.  Commissioners,  149 
N.  Y.  30;  People  ex  rel.  Wooster  v.  Maker,  141  N.  Y.  336;  People 
V.  Supervisors  of  Greene  County,  1 2  Barb.  217;  People  v.  Canal 
Board,  13  Barb.  432  ;  People  v.  Board  of  Education,  5  Supp.  393  ; 
People  ex  rel.  Bullard  v.  The  Contracting  Board,  33  N.  Y.  383  ;  In 
re  Town  Board  of  Lloyd,  7  Supp.  165  ;  People  ex  rel.  Millard  v. 
Chapin,  104  N.  Y.  100;  People  ex  rel.  Brown  v.  Board  of  Appor- 
tionment, 52  N.  Y.  227  ;  People  ex  rel.  Woodzuard  v.  Rosendale,  76 
Hun,  106;  see  Matter  of  Hilton  Bridge  Company,  i3App.  Div.  29. 
That  it  commands  the  doing  of  an  illegal  act.  People  ex  rel. 
Supervisors  V.  Fowler,  55  N.  Y.  254;  People  ex  rel.  Sherzvood  w. 
Board  of  Canvassers,  129  N.  Y.  369,  370;  People  ex  rel.  Pond  v. 
Supervisors,  47  St.  Rep.  456,  19  Supp.  978,  reversing  on  other 
grounds  47  St.  Rep.  702;  Matter  of  Popoff,  10  Misc.  273,  63  St. 
Rep.  438,  31  Supp.  2.  That  the  act  is  already  performed.  Deane 
V.  Greene  County  Supervisors,  66  How.  Pr.  461.  That  the  facts 
are  of  such  a  character  as  to  show  a  want  of  jurisdiction.  People  v. 
Commissioners,  27  Barb.  94  ;  Matter  of  Popoff,  10  Misc.  273,  63 
St.  Rep.  438,  31  Supp.  2;  People  ex  rel.  Dady  v.  Supervisors, 
89  Hun,  244,  69  St.  Rep.  448,  35  Supp.  91  ;  s.  C.  6  App.  Div.  228. 
That  the  remedy  would  be  ineffectual.  Ex  parte  Paine,  i  Hill, 
^^y  \  People  V.  Supervisors,  1 5  Barb.  607  ;  People  ex  rel.  Stevens  v. 
Hayt,  66  N.  Y.  608  ;  see,  also,  People  ex  rel.  Krohn  v.  Miller,  39  Hun, 
564 ;  Colonic  Life  Ins.  Co.  v.  Supervisors  of  New  York,  24  Barb. 
166;  People  ex  rel.  Sherwood  v.  Board  of  Canvassers,  129  N.  Y. 
369.  370;  compare  People  ex  rel.  Linnekinv.  Ennis,  18  App.  Div. 
413.  That  the  act  sought  to  be  coerced  is  impossible.  Silverthron 
V.  Warren  R.  Co.,  33  N.  J.  Law,  173;  People  v.  Chicago  R.  Com- 
pany, 55  111.  95  ;  see,  also,  People  ex  rel.  Green  v.  D.  &  C  R.  R. 
Co.\  58  N.  Y.  152  ;  and  People  ex  rel.  Winegardv.  Kromer,  5  Misc. 
54,  25  Supp.  48,  affirmed,  28  Supp.  1039,  78  Hun,  58  ;  People  ex  rel. 
Hoffman  v.  Tedcastle,  12  Misc.  468,68  St.  Rep.  135,  34  Supp.  257. 
That  the  act  is  prohibited  by  injunction.  People  v.  Village  of 
West  Troy,  25  Hun,  182  ;  People  ex  rel.  Humphrey  v.  Supervisors^ 


262  MANDAMUS. 


Art.  6.     Defences  to  Mandamus. 


30  Hun,  147;  SL  Stephens  Church  Cases,  25  Abb.  N.  C.  244,  ii 
Supp.  669.  But  see  Riggs  w.  Johnson  Co.,  6  Wall.  (U.  S.)  166. 
That  the  constitutionality  of  an  act  of  the  legislature  is  in- 
volved. People  V.  Stevens,  2  Abb.  Pr.  N.  S.  348 ;  Matter  of 
Woods,  5  Misc.  575  ;  compare  People  ex  rel.  Bur  bank  v.  Rob- 
inson, 14  Hun,  226;  People  ex  rel.  Canal  Board,  4  Lans.  275. 
That  it  is  sought  to  try  the  title  to  a  public  office.  People  v. 
Stevens,  5  Hill,  616  ;  Matter  of  Torney,  7  Misc.  260 ;  People  ex  rel. 
Riimph  V.  Supervisors,  89  Hun,  40  ;  People  ex  rel.  Hopnan  v.  Rupp, 
90  Hun,  148;  People  ex  rel.  Wren  v.  Goetti)ig,  133  N.  Y.  569; 
Matter  of  Gardner,  68  N.  Y.  467  ;  but  compare  People  ex  rel. 
Drake  v.  Siitton,  88  Hun,  174.  That  it  seeks  to  restrain  an  antici- 
pated act.  People  ex  rel.  Sayles  v.  Fitzgerald,  37  St.  Rep.  540,  13 
Supp.  663,  affirmed,  128  N.  Y.  620;  People  ex  rel.  SmitJier  v. 
Richmond,  5  Misc.  26,  25  Supp.  144;  High  on  Extraordinary  Rem- 
edies, 14;  Brown  v.  Duane,6o  Hun,  98,  37  St.  Rep.  691,  14  Supp. 
540.  That  it  seeks  to  enforce  a  mere  contract.  People  ex  rel.  Mor- 
rellv.  Worth,  16  Misc.  664,  72  St.  Rep.  733,  37  Supp.  126;  People 
ex  rel.  Ryan  v.  Aldridge,  83  Hun,  280,  31  Supp.  920;  People  v. 
Board  of  Education,  60  Hun,  488-584  ;  People  ex  rel.  Bullard 
V.  Contracting  Board,  33  N.  Y.  382  ;  but  see  People  ex  rel.  Cronin 
V.  Coffey,  62  Hun,  86,  affirmed,  131  N.  Y.  569;  People  ex  rel.  Weed- 
Parsons  Co.  V.  Palmer,  14  Misc.  41,  68  St.  Rep.  166,  35  Supp.  222  ; 
compare  Matter  of  Finnigan,  91  Hun,  176,  71  St.  Rep.  133,  36 
Supp.  331.  That  the  respondent  is  not  bound  to  do  the  act. 
People  ex  rel.  Gaige  v.  Rear  don,  ^<^  Hun,  425.  That  there  is  a 
remedy  by  appeal.  Ex  parte  Koon,  i  Denio,  645  ;  People  ex 
rel.  Wright  v.  Coffin,  7  Hun,  609;  People  ex  rel.  GottcJiius  v. 
McGoldrick,  67  St.  Rep.  289,  33  Supp.  441,  24  Civ.  Pro.  292; 
compare  People  ex  rel.  Stevens  v.  Lott,  42  Hun,  409;  but  sec 
People  ex  rel.  Eraser  v.  Trustees  of  Hamden,  71  Hun,  464. 
That  there  was  no  refusal  by  the  respondent  to  do  the  act 
sought  to  be  coerced.  /;/  re  Whitney,  3  Supp.  839;  Fish  v. 
Weatherzuax,  2  Johns.  Cases,  217,  note,  §  15  ;  but  see  People  ex 
rel.  Welling  v.  Meakim,  56  Hun,  632,  24  Abb.  N.  C.  477,  affirmed, 
123  N.  Y.  660  ;  compare  People  ex  rel.  O'Brien  v.  Cruger,  12  App. 
Div.  538.  Tliat  where  the  act  is  to  be  performed  by  either  of 
two  persons  there  has  not  been  a  refusal  on  the  part  of  both.  R. 
v.  Bishop  of  London,  13  East,  419.  That  defendant  has  no  power 
to  perform  the  act.     People  ex  rel.  Stevens  v.  Hayt,  66  N.  Y.  606 ; 


MANDAMUS.  263 


Art.   6.     Defences  to  Mandamus. 


People  cx  rcl.  McKoncv  Green,  11  Hun,  60.  That  there  was  no 
proper  tender  on  the  part  of  the  relator  where  tender  is  required. 
Matter  of  McGrath,  56  Hun,  78,  29  St.  Rep.  704.  That  the  claim, 
the  payment  of  which  is  required,  has  not  been  audited.  People 
V.  Brennan,  18  Abb.  Prac.  100.  Or,  though  audited,  that  the 
claim  has  been  wrongfully  allowed.  People  ex  rel.  M err  it  v.  Law- 
rence, 6  Hill,  245  ;  see,  also,  People  ex  rel.  McShedon  v.  Stout,  23 
Barb.  349.  That  the  public  of^cer  sought  to  be  coerced  has  no 
money  with  which  to  perform  the  act.  People  v.  Edmonds,  19 
Barb.  472  ;  People  v.  Hawes,  36  Barb.  59  ;  People  ex  rel.  Robinson 
V.  G  Keefe,  100  N.  Y.  576  ;  People  ex  rel.  Bur  bank  v.  Robinson,  y6 
N.  Y.  424 ;  but  see  People  ex  rel.  Dannant  v.  Comptroller,  yy  N.  Y. 
45  ;  People  ex  rel.  Satterlee  v.  Board  of  Police,  75  N.  Y,  38. 
But  a  lack  of  funds  is  no  defence  where  an  audit  and  not  a  pay- 
ment of  account  is  required.  People  v.  Supervisors,  22  How. 
Prac.  71.  That  a  payment  sought  to  be  coerced  has  already  been 
made  to  another  party.  Matter  of  Grady,  15  App.  Div.  506. 
That  there  was  laches  on  the  part  of  the  respondent.  Ex  parte 
Koon,  I  Denio,  645  ;  People  v.  Seneca  Common  Picas,  2  Wend.  264; 
People  ex  rel.  Miller  v.  Justices  of  Sessions,  78  Hun,  334,  29  Supp. 
157  ;  People  ex  rel.  Milliard  v.  Chapin,  104  N.  Y.  102  ;  People  ex 
rel.  Young  v.  Collis,  6  App.  Div.  467,  39  Supp.  698  ;  Matter  of 
Vanderhoff,  15  Misc.  434,  72  St.  Rep.  354,  36  Supp.  833  ;  People 
ex  rel.  Vanderhoff  v.  Palmer,  3  App.  Div.  389 ;  People  ex  rel. 
Jordan  v.  Board  of  Education,  69  St.  Rep.  622.  Compare  Peo- 
ple ex  rel.  Gas  Light  Company  v.  Common  Council  of  Syracuse, 
78  N.  Y.  61,  Laws  of  1896,  chapter  909,  §  133.  That  the 
action  is  barred  by  the  Statute  of  Limitations,  and  the  delay 
is  not  explained.  People  ex  rel.  Milliard  v.  Chapin,  104  N.  Y. 
102;  People  ex  rel.  Byrne  v.  French,  12  Abb.  N.  C.  156,  Code 
Civil  Procedure,  §  414;  People  ex  rel.  Best  v.  Preston,  62  Hun, 
189,  41  St.  Rep.  214,  afifirmed,  131  N.  Y.  644;  People  ex  rel.  SJicri- 
dan  v.  French,  31  Hun,  617,  13  Abb.  N.  C.  413.  That  there  is 
another  remedy.  People  v.  Stevens,  5  Hill,  616  ;  People  ex  rel.  Mil- 
liard V.  Chapin,  104  N.  Y.  102  ;  People  ex  rel.  Moult  on  v.  Mayor, 
10  Wend.  397 ;  People  ex  rel.  Wright  v.  Coffin,  7  Hun,  609  ;  People 
ex  rel.  Bank  v.  Board  of  Apportionment,  64  N.  Y.  629  ;  Ex  parte 
Lynch,  2  Hill,  46  ;  People  ex  rel.  Gottchius  v.  McGoldrick,  6j  St. 
Rep.  289,  33  Supp.  441  ;  People  ex  rel.  Lunney  v.  Campbell,  72  N.  Y. 
498  ;  Clark   v.  Miller,   54  N.  Y.  528  ;  People  ex  rel.  McKone  v. 


264  MANDAMUS. 


Art.  6.     Defences  to  Mandamus. 


Green,  11  Hun,  61  ;  People  ex  rel.  Perkins  v.  Hawkins,  46  N.  Y. 
II  ;    People  ex  rel.  Huntington  v.  Crennan,  141  N.  Y.    239,  56  St 
Rep.  807.     But  see  the  limitations  to  this  defence  in  People  ex  rel. 
Weed-Parsons  Co.  v.  Palmer,  14  Misc.  41,  68  St.  Rep.  166,  35  Supp. 
222  ;  People  ex  rel.  Pennell  v.  Treanor,  1 5   App.  Div.    5 11  ;  People 
ex  rel.  Livingston  v.  Taylor,  i  Abb.  Prac.  N.  S.  200 ;  Buck  v.  City 
of  Lockport,  6   Lansing,   255  ;  People  ex  rel.  Fielder  v.   Mead,  24 
N.  Y.   120;  McCulloiigh  V.  Mayor  of  Brooklyn,  23  Wend.  458. 
That  no  notice  has  been  given  in  a  case  requiring  notice.     People 
ex  rel.   Hasbroiickv.  Board  of  Canvassers,   18   Supp.  303,  45  St. 
Rep.  614.     Unless  the  error  is  waived  by  making  a  return  without 
objection  ;  S.  C.  135  N.  Y.  532,  48  St.  Rep.  536.     That  the  relator 
has    no    authority    to   maintain  the  proceedings.     St.   Stephen  s 
Church  Cases,  25  Abb.  N.  C.  247,   11  Supp.  669;  People  v.  Black- 
hurst,  60  Hun,  64,  15  Supp.    114.     That  the  right  of  the  relator  is 
not  clear.     People  v.  Village  of    West  Troy,  25  Hun,  182;  Matter 
of  Gardner,  68  N.  Y.  467;  Matter  of  Hilton  Bridge  Company,  13 
App.  Div.  29;  Matter  of  Finnigan,  91    Hun,  176,   71    St.  Rep. 
133.  36  Supp.  331  ;  People  ex  rel.  Frost  v.  Fay,  3  Lans.  398  ;  Peo- 
ple ex  rel.  Lunney  v.  Campbell,  72  N.  Y.  498  ;  People  ex  rel.  for  dan 
V.  Board  of  Education,  69  St.   Rep.    622.     That,  in  view  of  the 
facts,  the  court  should  refuse  the  writ  as  a  matter  of  discretion. 
Fishy.  Weatherwax,  2  Johnson's  Cases,  217,   note,  §  17;  People 
ex  rel.  McKone  v.  Green,  11  Hun,  61  ;  5/.  Stephen  s  Church  Cases, 
25  Abb.  N.  C.  246  ;  Van  Rensselaer  v.  Sheriff,  i  Co  wen,  512  ;  Peo- 
ple ex  rel.  Faile  v.  Ferris,  76  N.  Y.  329  ;  People  ex  rel.  Wood  v. 
Assessors,  137  N.  Y.  201,  50  St.  Rep.  404  ;   People  ex  rel.  Lunney  v. 
Campbell,  72  N.  Y.  498  ;  Matter  of  Sage,  70  N.  Y.  223  ;  People  ex 
rel.  Fiske  v.  Devermann,  83  Hun,  183,  64  St.  Rep.  147,  31  Supp. 
593  ;  but  compare  People  ex  rel.  Gas  Light  Company  v.  Common 
Council  of  Syracuse,  78  N.  Y.  61.     That  the  relator  has   not   ex- 
hausted his  remedy  by  statute,  where   there  is  one.     People  ex 
rel.   Clason  v.  Nassau  Ferry  Co.,  86   Hun,   130,  33   Supp.    244; 
People  ex  rel.  Huntington  v.  Crennan,  141  N.  Y.  239,  56  St.  Rep. 
807.     Tliat  the  relator  has  not  performed  a  condition  precedent. 
People  ex. rel.  Stevens  v.  Hayt,  66  N.  Y.  606  ;  Matter  of  McGrath, 
56  Hun,  78,  29  St.  Rep.  704;  People  ex  rel.  O'Brien  v.  Cruger,  12 
App.  Div.   538.     That  the  claim  involved  is  fraudulent.     People 
ex  rel.  Slavin  v.  Wendell,  71  N.  Y.  172.     That  it  is  sought  to  re- 
lieve the  relator  from  the  consequences  of  his  own  fraud.     Pea- 


MANDAMUS.  26$ 


Art.  7.     Stay  of  Proceedings  ;  Damages  and  Fines. 


J}U  ex  rel  Wood  v.  Assessors,  137  N.  Y.  204.  That  relator  has 
accepted  performance  by  third  parties.  People  ex  rel.  P.  C.  Saviitgs 
Batik  V.  Cromiuell,  102  N.  Y.  477.  That  the  relator  is  estopped. 
People  ex  rel.  Bliss  v.  Board  of  Supervisors,  15  Supp.  748. 

ARTICLE  VII. 

Stay  of  Proceedings  ;  Damages  and  Fines.    §§  2089,  2088^ 

2090. 

§  2089,  [Am'd,  1895.]  Stay  to  proceedings;  enlargement  of 
time. 

The  proceedings  upon  a  writ  of  mandamus,  granted  at  a  Special  Term,  may  be  stayed 
and  the  time  for  making  a  return,  or  for  doing  any  other  act  thereupon,  as  prescribed 
in  this  article,  may  be  enlarged,  as  in  an  action,  by  an  order  made  by  a  judge  of  the 
court,  but  not  by  any  other  officer.  Where  the  writ  was  granted  at  a  term  of  the  ap- 
pellate division,  an  order  staying  the  proceedings,  or  enlarging  the  time  to  make  a  re- 
turn, can  be  made  only  by  a  justice  of  the  appellate  division  of  the  same  department ;  and 
where  notice  has  been  given  of  an  application  for  a  mandamus  at  a  term  of  the  ap- 
pellate division  of  the  Supreme  Court,  or  an  order  has  been  made  to  show  cause,  at 
such  term,  why  a  mandamus  should  not  issue,  a  stay  of  proceedings  shall  not  be 
granted,  before  the  hearing,  by  any  court  or  judge. 

§  2088.  When  relator  to  recover  damages. 

Where  a  return  has  been  made  to  an  alternative  writ  of  mandamus,  issued  upon  the 
relation  of  a  private  person,  the  court,  upon  making  a  final  order  for  a  peremptory 
mandamus,  must  also,  if  the  relator  so  elects,  award  to  the  relator,  against  the  defend- 
ant who  made  the  return,  the  same  damages,  if  any,  which  the  relator  might  recover 
in  an  action  against  that  defendant,  for  a  false  return.  The  relator  may  require  his 
damages  to  be  assessed  upon  the  trial  of  an  issue  of  fact,  if  the  verdict,  report,  or 
decision  is  in  his  favor.  Where  he  is  entitled  to  a  final  order,  for  any  other  cause,  he 
may  require  them  to  be  assessed  as  in  an  action.  Such  an  assessment  of  damages 
bars  an  action  for  a  false  return. 

i^  2090.  Pine  in  certain  cases. 

Where  a  final  order  awards  a  peremptory  mandamus,  directed  to  a  public  officer, 
board,  or  other  body,  commanding  him  or  them  to  perform  a  public  duty,  enjoined 
upon  him  or  them  by  a  special  provision  of  law,  if  it  appears  to  the  court,  that  the 
officer,  or  one  or  more  members  of  the  board  or  body,  have,  u-ithout  just  excuse,  refused 
.  or  neglected  to  perform  the  duty  so  enjoined,  the  court,  besides  awarding  to  the  re- 
lator his  damages  and  costs,  as  prescribed  in  this  article,  may,  in  the  same  order, 
impose  a  fine,  not  exceeding  two  hundred  and  fifty  dollars,  upon  the  officer,  or  upon 
each  member  of  the  board,  who  has  so  refused  or  neglected.  The  fine,  when  collected, 
must  be  paid  into  the  treasury  of  the  State ;  and  the  payment  thereof  bars  any  action 
for  a  penalty,  incurred  by  the  person  so  fined,  by  reason  of  his  refusal  or  neglect  to 
perform  the  duty  so  enjoined. 

The  application  for  a  stay  at  Special  Term  may  be  made  on  ar- 
gument, and  the  stay  embodied  in  the  writ ;  or,  the  better  prac- 
tice is  to  enter  an  order  staying  proceedings  on  the  writ  pending 


266  MANDAMUS. 


Art.  7.     Stay  of  Proceedings  ;  Damages  and  Fines. 


an  appeal ;  or,  in  case  the  application  is  not  made  until  after 
order  entered,  it  may  be  made  upon  an  ajBdavit  setting  out  the 
facts,  and  that  an  appeal  has  been  or  is  about  to  be  taken.  No 
notice  of  the  application  is  necessary,  unless  required  by  the 
court  to  which  the  application  is  made. 

Precedent  for   Order  Staying  Proceedings,  Pending   Appeal, 
Made  on  the  Argument. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  City  Hall  in  Albany, 

on  the  20th  day  of  December,  1885  : 
Present: — Hon.  R.  W.  Feckhsim, /us f ice. 

SUPREME  COURT. 


The  People  of  the  State  of  New  York, 

The    Board    of    Supervisors   of  the   County   of 
Ulster. 


An  application  having  been  this  day  made  for  a  writ  of  mandamus 
directing  the  board  of  supervisors  of  the  county  of  Ulster  to  levy  and 
assess  on  the  taxable  property  of  said  county  the  sum  of  $28,098,  and 
the  same  having  been  granted  by  order  of  the  court,  after  hearing  I. 
H.  Maynard,  deputy  attorney-general,  for  the  motion,  and  J.  Newton 
Fiero,  opposed,  and  it  appearing  that  the  defendant  is  about  taking  an 
appeal  from  said  order,  on  motion  of  defendant's  counsel,  it  is  ordered 
that  all  proceedings  on  said  writ  be  stayed  until  the  expiration  of  the 
time  to  appeal  from  said  order,  and  in  case  such  appeal  is  taken,  then 
that  all  proceedings  thereon  be  stayed  till  the  hearing  and  determination 
of  said  appeal. 

Enter  in  Ulster  County.  R.  W.  PECKHAM. 

The  writ  of  mandamus  is  an  order  of  the  court  within  the 
meaning  of  the  statute,  providing  for  punishment  as  for  a  con- 
tempt for  disobedience  of  any  lawful  order  of  a  court  of  record, 
and  the  fine  imposed  in  such  a  case  may  include  a  reasonable 
compensation  for  relator's  attorney. 

The  provisions  of  the  Revised  Statutes  that  when  a  peremptory 
writ  is  directed  to  a  public  officer  or  board,  requiring  them  to 
perform  a  public  duty,  and  it  shall  appear  they  have  neglected 
so  to  do,  a  fine  of  $250  may  be  imposed,  were  not  intended  to 
prescribe  the  punishment  for  disobeying  the  writ,  but  to  enforce 
a  fine  for  past  neglect,  in  addition   to  awarding  the  writ.     But 


MANDAMUS.  26/ 


Art.  7.     Stay  of  Proceedings  ;  Damages  and  Fines. 


the  directors  of  a  corporation  are  not  a   public   officer,  body,  or 
board  under  this  statute.     People  v.  State  Line  R.  R.,  76  N.  Y.  294. 

The  offence  for  which  the  fine  is  authorized  to  be  imposed  is 
not  disobedience  of  the  writ  but  the  unexcused  neglect  of  duty 
of  which  the  ofificer  was  guilty  before  the  writ  issued,  and  which 
rendered  the  application  necessary,  and  the  fine  may  be  imposed 
at  the  time  of  issuing  the  peremptory  writ.  It  is  entirely  inde- 
pendent of  punishment  as  for  a  contempt  in  disobeying  the  writ. 

This  decision,  although  made  before  the   Code,   seems  still  to 
be  in  point,  as  the  changes  made  (2  R.  S.  587,  §60)  by  this  section 
are  slight  and  do  not  seem  to  affect  this  question.     In  People  v. 
Supervisors  of  Delaivare,  45   N.  Y.  196,  a  second  writ  was  served 
where  first  writ  had  not  been  fully  obeyed.     The  court  will  stay 
the  issuance   of  a  peremptory  writ  of  mandamus  to  compel  the 
comptroller  of  a  city  to  pay  an  award   made  by   commissioners 
under  L.  1893,  ch.  537,  where  proceedings  by  certiorari  had  been 
issued  to  review  the  correctness  of  said  award.     Pea.  ex  rel.  Purely 
V.  Fitch,  147   N.  Y.  362,  reversing  87  Hun,  304,  68  St.  Rep.  320. 
Where  a  mandamus  has  been  granted,  and  the  questions  decided 
in   granting   the   same   are  important  and  fairly    debatable,  pro- 
ceedings  under   the   writ  will  be  stayed   until  the  appeal  from 
the  order  of  mandamus  is  decided  by  the  General  Term   under 
§  2089  of  the  Code  Civil  Procedure  providing  for  a  stay  of   pro- 
ceedings under  the  writ  of  mandamus.     Pea.  ex  rel.  Fleming  v. 
Hart,   II   Supp.  674,   25  Abb.   N.   C.   266.     In    proceedings   by 
mandamus  to   compel    the  board    of    police    commissioners    of 
a  city  to  pay  the  salary   of  a  police  ofificer,   it  is  error  to  grant 
a    money    judgment     against    the    respondent.      Peo.    ex    rel. 
Nugent  V.  Police  Comm.,  114  N.   Y.   245,   23   St.  Rep.  230.      At 
common   law    the   issues   raised   for   a   return   to   an   alternative 
writ  could  not  be  tried   in   mandamus  proceedings,  and   thus  in 
such  case  the  relator  could   not   recover   damages    in    the    pro- 
ceeding.    His  method  was  to  falsify  the  return   in  an  action   for 
that   purpose,  in   which    action    he    recovered    damages.       This 
method   being  too  dilatory,  the  practice  was  changed  by  statute 
and  by  the  Code  ;  so  now  an  issue  of  fact  raised  by  return  to  the 
alternative  writ  is  triable  by  the  jury,  and  the  relator  is  entitled 
to  a  verdict  where  he  would  be  entitled  thereto  in  the  old  action 
for  damages  for  a  false  return  (§  2083)  ;  and  if  he  so  elect  he  may  at 
the   same  time    recover  the  damages  which  he  would  have  re- 


268  MANDAMUS. 


Art.  7.     Stay  of  Proceedings  ;  Damages  and  Fines. 


covered  in  such  action  for  a  false  return  (§  2088).  See  Pco.  ex 
rel.  Goring  v.  President,  13  Misc.  733,  69  St.  Rep.  592,  reversed 
on  other  matters  involved,  151  N.  Y.  386. 

Where  one  has  been  expelled  illegally  from  a  mutual  pro- 
tective union,  damages  will  be  awarded  in  the  final  order  on  the 
trial  of  the  alternative  mandamus  for  his  reinstatement,  for  the 
loss  suffered  in  consequence  of  his  expulsion  ;  and  where  one 
lost  a  position  as  a  musician  after  such  expulsion,  by  reason  of 
his  non-membership,  it  was  held  to  be  the  proximate  result 
of  his  expulsion,  and  as  such  furnished  grounds  for  the  award  of 
damages;  held  further  that  the  conclusion  of  the  trial  court  as 
to  the  amount  of  damages  was  not  reviewable  in  the  Court  of 
Appeals.  Peo.  ex  rel.  Deverellv.  Musical  Mutual  Protective  Union, 
118  N.  Y.  109.  Section  2088  of  the  Code  Civil  Procedure  gives 
ample  authority  for  allowing  the  jury  to  assess  the  damages  sus- 
tained by  the  relator  upon  the  trial  of  the  alternative  writ.  Peo. 
ex  rel.  Cruniuiey  v.  Palmer,  9  App.  Div.  60,  reversed  on  other 
grounds,  152  N.  Y.  217. 

Section  2088  of  the  Code  of  Civil  Procedure  providing  for  an 
award  of  the  relator's  damages  in  proceedings  by  mandamus 
applies  not  only  when  there  is  a  trial  of  issues  upon  the  return  of 
the  alternative  writ,  but  applies  also  where  the  peremptory  writ 
issues  in  the  first  instance  upon  motion.  The  proper  practice  is, 
if  the  relator  wishes  to  avail  himself  of  this  provision,  for  him 
to  apply  for  an  award  of  damages  at  the  time  he  enters  the 
order  of  the  Special  Term  granting  the  peremptory  writ  in  the 
first  instance.  And  if  he  fails  to  do  so,  it  is  too  late  to  ask  for 
damages  on  the  remittitur  of  the  Court  of  Appeals.  It  was 
held,  however,  that  in  such  case  the  defendant  by  entering  into  a 
stipulation  for  the  appointment  of  a  referee  to  take  proof  to 
enable  the  court  to  assess  such  damages,  waives  the  failure  of  the 
relator  to  ask  for  damages  at  the  proper  time.  Peo.  ex  rel. 
Goring  V.  Wappinger  Falls,  151  N.  Y.  388,  reversing  91  Hun,  319, 
69  St.  Rep.  592,   13  Misc.  734. 

Section  2090  of  the  Code  is  not  a  punishment  within  the 
meaning  of  §  1 17  of  the  Penal  Code,  and  the  awarding  of  the  fine 
provided  by  this  section  of  the  Code  of  Civil  Procedure  does  not 
proliibit  a  criminal  proceeding  against  the  officer  for  the  same 
act.  Public  officers  neglecting  to  perform  public  duties  may  be 
proceeded  against  and  punished  both  under  the  provisions  of  the 


MANDAMUS.  269 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

Penal   Code  and  under  §  2090  of  the  Code  of  Civil  Procedure. 
People  V.  Meakim,  133  N.  Y.  222,  224. 

ARTICLE  VIII. 
Costs,  Appeals  ;  Proceedings  for  Contempt.   §§  2086,  2087. 

Sub.     I.  Costs.     §  2086. 

2.  Appeals.     §  2087. 

3.  Contempt  in  disobeying  writ. 

Sub.   I.  Costs.    §  2086. 
§  2086.  Costs. 

Where  an  alternative  writ  of  mandamus  has  been  issued,  costs  may  be  awarded,  as 
in  an  action  ;  except  that,  upon  making  a  final  order,  the  costs  are  in  the  discretion  of 
the  court.  Where  a  peremptory  mandamus  is  granted,  without  a  previous  alternative 
mandamus,  costs,  not  exceeding  fifty  dollars  and  disbursements,  may  be  awarded  to 
either  party  as  upon  a  motion. 

Costs  will  not  ordinarily  be  given  against  an  of^cer  acting  in 
good  faith.  People  v.  Brinkerhoff,  68  N.  Y.  259.  It  was  held  at 
Special  Term,  in  People  v.  Produce  Exchange,  64  How.  523,  that 
under  this  section  only  motion  costs  could  be  allowed,  where  a 
peremptory  mandamus  is  denied  without  an  alternative  writ.  In 
People  ex  rel.  Bray  v.  Board  of  Supervisors  of  Ulster  County,  65 
How.  327  ;  and  on  appeal  in  same  case  to  General  Term,  third 
department,  affirmed,  31  Hun,  88,  it  was  held  that  full  costs  as 
of  an  argument,  and  not  costs  of  non-enumerated  motion,  were  to 
be  allowed  at  General  Term,  and  that  this  section  does  not  apply 
to  costs  on  appeal.  The  equity  of  each  case  will  govern  the  al- 
lowance of  costs,  and  when  the  order  is  silent  as  to  costs  they  will 
not  be  allowed.  People  v.  Densmore,  i  Barb.  557  ;  People  v.  Supej- 
visors  of  Dutchess,  3  How.  380.  It  is  not  the  practice,  upon  award- 
ing a  peremptory  writ,  to  grant  costs  against  judges  or  other  sub- 
ordinate courts,  or  other  public  officers  intrusted  with  the  discharge 
of  judicial  duties.  Hecox  v.  Ellis,  19  Wend.  157.  Nor  against 
any  public  officer,  when  it  appears  his  refusal  to  comply  with 
the  demand  of  the  relator  was  conscientious,  and  founded  on 
reasonable  grounds.  People  v.  Flagg,  5  Abb.  232.  But  when 
judges  make  a  return  it  has  been  held  otherwise,  on  the  ground 
that  they  are  then  presumed  to  be  indemnified  by  the  party  in 
interest.  People  v.  Common  Pleas,  18  Wend.  534.  It  was  held  in 
1874,  in  People  ex  rel.  City  of  Lockport  v.  Supervisors  of  Niagara, 
50  How.  353,  that  costs  on  final  determination  on  a  trial  of  man- 


270  MANDAMUS. 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

damus  were  to  be  taxed  according  to  Laws  of  1844,  chap.  273.  As 
to  the  present  practice, see  Code  of  Procedure,  §§  3240  and  3258, 
as  to  double  costs.  It  is  not  suf^cient  to  render  one,  not  a  party 
to  the  record,  liable  for  costs,  that  the  return  was  made  at  his 
request,  and  that  he  opposed  the  issuing  of  the  peremptory  writ. 
People  V.  Common  Pleas,  2  Wend.  301.  But  a  party  resisting  a 
mandamus  by  requiring  the  relators  to  plead  or  demur,  and  sub- 
sequently joining  in  demurrer,  is  liable  to  costs  of  the  demurrer 
if  relator  as  judgment.  People  v.  Common  Pleas,  3  Wend.  304. 
Costs  should  follow  the  denial  of  a  motion  for  a  writ  where  the 
defendant  opposed,  and  the  law  is  plain  against  the  relator. 
People  V.  Colbiirn,  20  How.  378.  A  public  of^cer  is  entitled  to 
double  costs  where  he  succeeds  upon  proceedings.  People  v. 
Colborne,  20  How.  378.  It  was  held  under  the  former  Code  that 
when  an  alternative  writ  was  awarded  and  return  made  and  trial 
had,  costs  should  be  taxed  according  to  the  fee-bill  under  the 
Revised  Statutes.  This  section,  of  course,  determines  the  prac- 
tice and  conforms  the  fee-bill  to  the  Code,  as  in  other  cases. 

Where  the  court  at  the  time  of  the  decision  of  the  application 
for  mandamus  could  offer  the  applicant  no  relief  even  if  he  were 
legally  entitled  to  the  writ,  it  was  held,  in  modifying  the  order  of 
denial,  that  the  application  should  have  been  dismissed,  with- 
out costs.  Peo.  ex  rel.  Schwager  v.  McLaen,  36  St.  Rep.  534, 
13  Supp.  384,  modifying  S.  C.  33  St.  Rep.  715,  11  Supp.  851. 
See  in  connection  with  this  section,  §  3258,  Code  Civ.  Pro., 
which  provides  that  in  certain  cases  the  defendant  is  entitled  to 
increased  costs.  Among  these  cases  is  when  special  proceedings 
are  instituted  by  a  State  writ.  The  provisions  of  §  2086  are 
general,  while  the  provisions  of  §  3258  are  special,  and  relate  only 
to  certain  cases  in  which  the  defendant  is  a  public  ofificer  ;  and 
in  such  cases  the  special  provisions  of  §  3258  control  the  general 
provisions  of  §  2086.  Peo.  ex  rel.  v.  Speed,  73  Hun,  302,  57  St. 
Rep.  295,  26  Supp.  254,  affirmed,  142  N.  Y.  670. 

Where,  on  an  agreed  statement  of  facts,  the  parties  moved 
directly  for  a  peremptory  writ  in  a  case  in  which,  but  for  such 
agreement  as  to  facts,  an  alternative  writ  would  be  necessary,  it 
was  held  that  it  was  to  be  regarded  as  a  special  proceeding  and 
that  the  costs  were  discretionary.  Peo.  v.  ^V.  K,  L.  E.  &  W.  R. 
R.  Co.,  47  Hun,  44.  Where  the  Court  of  Appeals  reverses  the 
decision  of  the  General  and  Special  Terms  sustaining  a  demurrer 


MANDAMUS.  2/1 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

to  an  alternative  writ  with  costs  to  the  defendant  and  grants 
leave  to  the  defendant  to  answer  on  payment  of  costs,  the  relator 
may  properly  apply  to  the  Special  Term  for  an  order  granting  him 
the  costs  of  the  Special  Term.  The  granting  of  such  order  is  dis- 
cretionary, and  the  relator  is  not  entitled  to  such  costs  as  a  mat- 
ter of  right  under  §  2086,  Code  Civil  Procedure,  inasmuch  as 
mandamus,  though  strictly  a  remedy  at  law,  not  in  equity,  does 
not  fall  within  the  terms  of  §  3228  of  the  Code  of  Civil  Procedure. 
In  such  cases  the  General  Term  costs  can  only  be  awarded  by 
the  General  Term  itself.  Pco.  ex  rel.  Keene  v.  Siipvrs.,  33  Hun,. 
239,  64  St.  Rep.  159,  afifirmed,   145  N.  Y.  597. 

On  a  motion  by  an  attorney  for  a  deceased  relator  in  proceed- 
ings by  mandamus  subsequently  carried  to  judgment,  by  a  party 
substituted  for  the  deceased  relator,  to  make  the  costs  payable  to 
the  attorney  of  the  original  relator,  it  was  held  that  such  amend- 
ment was  unauthorized  by  law  ;  that  the  rights  of  the  attorney 
terminated  with  the  death  of  the  original  relator,  and  that  his 
remedy,  if  he  had  a  lien,  was  not  by  a  change  in  the  form  of  the 
judgment,  but  by  a  hearing  in  the  proceedings  before  the  court,  a 
referee,  or  jury.  Pco.  ex  rel.  Reynolds  v.  Coininon  Coimcil,  9  Misc. 
406,  61  St.  Rep.  694.  In  a  case  where  an  application  for  manda- 
mus was  held  to  be  premature,  as  the  respondent  still  had  time  to 
perform  the  duty  sought  to  be  coerced,  costs  were  not  allowed 
to  either  party.  Peo.  ex  rel.  SinitJicr  v.  Richmond,  5  Misc.  26. 
The  costs  allowed  and  recoverable  upon  an  appeal  from  an 
order  granting  a  peremptory  writ,  when  such  order  is  afilirmed, 
are  regulated  by  §  3240,  Code  Civil  Procedure,  and,  in  the  dis- 
cretion of  the  court,  are  the  same  costs  which  are  given  on  appeal 
from  the  judgment.  Peo.  v.  Ulster  Coutity  Supvrs.,  65  How.  Pr. 
327.  See,  also,  Pco.  v.  Ewcn,  8  Abb.  Pr.  359  ;  Peo.  v.  Lewis,  28 
How.  Pr.  159.  When  costs  are  awarded  as  a  matter  of  discretion 
they  are  not  subject  to  review  upon  appeal.  See  Peo  v.  Albright, 
23  How.  Pr.  306.  Section  2088  as  to  costs  apply  where  a  final 
order  for  the  peremptory  writ  was  obtained  in  the  first  instance, 
without  issuing  of  an  Alternative  writ,  if  the  relator,  at  the  time 
of  entering  his  final  order,  elects  to  have  his  damages  awarded 
in  a  proceeding.  People  ex  rel.  Goring  v.  Wappingers  Falls,  \^\ 
N.  Y.  386.  See  opinion  of  the  court  below  in  assessing  damages 
under  the  above  Court  of  Appeals'  decision.  People  ex  rel. 
Goring  V.  Wappingers  Falls,  20  Misc.  28. 


2^2  MANDAMUS. 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

Sub.  2.  Appeals.     §  2087. 

§  2087.     [Am'd,  1895.J     Appeals. 

An  appeal  from  an  order  granting  a  peremptory  writ  of  mandamus,  where  an  alter- 
native writ  of  mandamus  was  not  previously  issued,  must  be  taken  as  from  a  final  order 
made  in  a  special  proceeding.  An  appeal  from  a  final  order  made  upon  an  alternative 
mandamus,  must  be  taken,  as  an  appeal  from  a  judgment;  and  each  provision  of  law, 
relating  to  an  appeal  from  a  judgment,  either  to  the  appellate  division  or  to  the  Court 
of  Appeals,  is  applicable  thereto.  But  where  an  appeal  is  taken,  as  prescribed  in  this 
section,  from  an  order  of  the  appellate  division,  granting  a  peremptory  mandamus, 
made  upon  an  original  application,  or  from  a  final  order,  made  upon  an  alternative 
mandamus,  granted  at  the  appellate  division,  the  execution  of  the  order  appealed  from 
shall  not  be  stayed,  except  by  the  order  of  the  same  appellate  division,  made  upon 
such  terms,  as  to  security  or  otherwise,  as  justice  requires. 

Where  the  Special  Term  denies  a  peremptory  writ  of  man- 
damus on  the  specific  ground  mentioned  in  the  order  that  the 
relator  can  maintain  an  action  at  law  on  his  demand,  the  General 
Term,  on  appeal,  is  not  restricted  to  that  ground,  if  there  is  any 
other  proper  ground  for  denial  appearing  in  the  papers.  People 
ex  rcl.  Bagley  V.  Green,  i  Hun,  i.  Where  one  of  the  claimants 
for  property  in  the  sheriff's  possession  moves  for  a  mandamus 
against  the  sheriff  to  compel  him  to  deliver  it,  and  is  opposed  by 
the  sheriff  with  an  affidavit  of  the  other  claimant,  such  other 
claimant  cannot  appeal,  not  being  a  party  to  the  record,  even 
though  he  was  recognized  as  an  appellant  at  General  Term. 
People  ex  rel.  Lee  v.  Lynch,  54  N.  Y.  681.  Where  the  facts  give 
the  court  jurisdiction,  granting  or  refusing  the  writ  is  so  far  dis- 
cretionary, that  the  Court  of  Appeals  will  not  ordinarily  review 
the  exercise  of  discretion.  In  re  Sage,  70  N.  Y,  220;  People  v. 
Ferris,  y6  id.  326 ;  People  v.  Campbell,  72  id.  496.  And  in  such  a 
case  no  appeal  lies,  unless  the  discretion  of  the  General  Term  has 
been  abused.  /;/  re  Dederick,  jj  N.  Y.  595  ;  People  v.  Clyde,  69 
id.  603  ;  People  v.  Thompson,  99  id.  641.  This  rule  is  not  in  con- 
flict with  the  principle  asserted  in  People  ex  rel.  v.  Metropolitan 
R.  R.  Co.,  26  Hun,  82,  that  judgment  adverse  to  relator  not  dis- 
posed of  on  mere  grounds  of  discretion,  but  on  the  merits,  is  re- 
viewable by  the  Court  of  Appeals.  But  if  a  motion  for  a  per- 
emptory writ  on  answering  affidavit  is  absolutely  denied,  a  sub- 
sequent motion  to  modify  the  order,  so  as  to  permit  an  alterna- 
tive writ  to  issue,  is  addressed  to  the  discretion  of  the  court,  and 
not  reviewable  in  the  Court  of  Appeals.  People  ex  rel.  Ins.  Co. 
V.  Fairinan,  91  N.  Y.  385,  A  party  who  has  obtained  an  exten- 
,sio;i  of  lime  to  comply  with  a  mandamus  cannot  thereafter  ap- 


MANDAMUS.  2/3 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

peal.  People  w.  Rochester  R.  R.,  15  Hun,  188.  Where  the  Gen- 
eral Term  erroneously  ordered  a  peremptory  mandamus  for  pay- 
ment of  the  whole  of  a  claim,  the  Court  of  Appeals  allowed  an 
alternative  writ  totry  the  disputed  questions.  Peoplev.  Seliryver, 
69  N.  Y.  242.  A  party  on  appeal  cannot  successfully  urge  that 
the  delay  occasioned  by  his  action  in  appealing  will  render  the 
writ  unavailing  if  issued.  People  v.  Contracting  Boards  46  Barb. 
254.  It  is  said  that  when  an  application  is  made  for  a  man- 
damus a  respondent  may  move  to  vacate  former  orders  granting 
the  writ,  though  the  time  to  appeal  from  them  has  passed.  Peo- 
ple V.  Cooper,  24  Hun,  337.  On  appeal  from  an  order  adjudging 
one  guilty  of  contempt  in  not  obeying  the  writ,  the  question  as 
to  the  propriety  of  granting  the  writ  cannot  be  considered. 
People  V.  Rochester  R.  R.  Co.,  76  N.  Y.  294.  An  appeal  to  the 
Court  of  Appeals  from  an  order  of  the  General  Term  affirming 
an  order  of  the  Special  Term,  granting  a  peremptory  writ  of  man- 
damus, is  taken  as  from  a  final  order  made  in  a  special  proceed- 
ing, and  not  as  from  a  judgment.  People  ex  rel.  Collins  v.  Spicer, 
34  Hun,  584.  An  appeal  lies  to  the  General  Term  from  the  order 
or  judgment  of  the  Special  Term.  People  v.  Schoonmaker,  19 
Barb.  657.  And  from  the  General  Term  to  the  Court  of  Ap- 
peals. People  V.  Church,  20  N.  Y.  529  ;  People  v.  Supervisors,  45 
id.  196  ;  People  v.  Haickins,  46  id.  9  ;  People  v.  Nostrand,  id.  375  ; 
Becker  v.  People,  18  id.  487.  This  is  true  in  all  cases  where 
the  decision  does  not  rest  solely  in  discretion  whether  the  writ 
was  granted  on  application  in  the  first  instance  for  a  peremp- 
tory writ,  or  in  granting  the  peremptory  writ  after  an  alter- 
native writ  has  issued.  People  v.  Sturtevant,  9  How.  304 ; 
People  V.  Lewis,  28  id.  159,  170.  This  is  a  change  from  the 
practice  previous  to  the  Code.  This  view  is  in  accordance 
with  the  practice  as  established  in  the  Court  of  Appeals,  that 
the  argument  on  appeal  in  mandamus  cases  must  be  heard  as 
on  an  appeal  from  an  order,  and  the  appeal  does  not  take  its 
place  on  the  regular  calendar,  but  on  the  motion  calendar,  with 
appeals  from  orders,  and  the  time  given  for  argument  is  the  same 
as  on  appeals  from  orders.  But  an  appeal  to  the  Court  of  Ap- 
peals from  an  order  of  General  Term,  reversing  a  judgment  of 
Special  Term  granting  a  new  trial  on  alternative  writ,  after  trial 
of  issues  of  fact,  is  not  an  appeal  from  an  order,  and  should  not  be 

brought  on  as  a   motion,   but   should   be  placed   on  the   general 
18 


274  MANDAMUS. 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 


calendar.  People  v.  Laidlaw,  102  N.  Y.  588.  The  granting  of 
an  alternative  writ  is  so  much  a  matter  of  discretion,  that  it  is 
not  the  subject  of  review  on  appeal.  Pco.  ex  rel.  Fisk  v.  Dever- 
mann,  83  Hun,  183,  64  St.  Rep.  147,  31  Supp.  593.  The  Court 
of  Appeals  will  not  review  the  correctness  of  an  award  of 
damages  made  by  street  commissioners  though  upholding  the 
writ  of  mandamus  to  compel  the  comptroller  of  the  city  to  pay 
such  award.  Such  award  should  be  reviewed  by  certiorari, 
and  the  court  will  stay  the  proceedings  by  mandamus  till  such 
review  is  had.  Peo.  ex  rel.  Purely  v.  Fiteh,  147  N.  Y.  362,  revers- 
ing, 87  Hun,  304,  68  St.  Rep.  320. 

On  reference  to  §  2087  it  will  be  seen  that  a  distinction  is  made 
between  proceedings  where  an  alternative  writ  is  first  issued,  and 
then  a  peremptory  writ,  and  those  in  which  a  peremptory  writ  is 
issued  in  the  first  instance.  In  the  latter  case  that  section  pro- 
vides that  an  appeal  is  to  be  taken  as  from  a  final  order  made  in 
a  special  proceeding.  In  the  former  case  it  is  to  be  taken  as  an 
appeal  from  a  judgment.  People  ex  rel.  Collins  v.  Spicer,  34  Hun, 
584.  An  appeal  will  not  lie  from  an  order  granting  an  alternative 
writ  of  mandamus.  The  appeal  only  lies  in  such  case  from  the 
final  order  made  upon  the  trial  of  such  alternative  writ.  People  ex 
rel.  Lester  v.Mitehel,  39  St.  Rep.  768,  21  Civ.  Pro.  112,  15  Supp. 
305.  Where  from  the  record  it  appears  on  an  appeal  from  an 
order  denying  an  application  for  a  writ  of  mandamus,  that  the 
court  below  might  have  refused  the  application  in  the  proper  exer- 
cise of  its  discretion,  the  appellant  in  the  Court  of  Appeals  must 
show  that  the  writ  was  refused  on  a  question  of  law  only  ;  if  it 
were  refused  as  a  matter  of  discretion,  the  order  refusing  it  will  be 
afifirmcd.     People  ex  rel.  D.  L.  I.   Co.  v.  Jeroloman,  139  N.  Y.  14. 

Where  the  granting  or  refusing  of  a  writ  is  in  the  discretion 
of  the  court  of  original  jurisdiction,  and  it  docs  not  appear  upon 
the  appeal  that  the  discretion  has  been  abused,  the  Court  of 
Appeals  will  not  review  the  proceeding.  Matter  of  Dederick,  "jy 
N.  Y.  595.  The  Court  of  Appeals  will  not  review  the  discretion 
of  the  lower  court  in  quashing  or  amending  a  peremptory  writ, 
which  requires  more  than  the  respondent  would  be  required  to 
do.  People  ex  rel.  Hasbronck  v.  Supervisors,  135  N.  Y.  534,48  St. 
R^P-  533-  Where  on  appeal  an  order  refusing  a  mandamus  is 
reversed,  the  proper  way  of  disposing  of  it,  if  the  people  refuse  to 
proceed,  is  for  the  Special  Term  to  deny  the  motion  with  or  with- 


MANDAMUS.  2/5 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

out  costs,  not  by  an  order  to  proceed  and  setting  it  down  for  a 
hearing.  People  v.  New  York  Central  &  H.  R.  R.  Co.,  30  Hun,  78. 
The  Court  of  Appeals  will  afifirm  the  order  granting  a  writ  of 
mandamus  where  it  has  been  issued  and  fully  executed,  there 
being  no  question  of  practical  importance  to  decide.  People  ex 
rel.  2^d  St.  R.  R.  Co.  v.  Squire,  1 10  N.  Y.  667.  The  court  may, 
in  its  discretion,  refuse  the  writ  of  mandamus,  and  where,  on 
appeal  from  an  order  denying  the  writ,  the  court  below  might 
have  refused  the  writ  in  exercising  its  discretion,  an  appellant 
must  show  in  the  Court  of  Appeals,  by  the  face  of  the  order,  that 
the  writ  was  refused  upon  a  question  of  law  ;  otherwise  the 
order  will  be  affirmed,  and  in  such  case  the  court  will  not  look 
to  the  opinion  of  the  General  Term  to  ascertain  the  grounds  for 
the  refusal.  People  ex  rel.D.  L.  I.  Co.  m.  Jeroloman,  139  N.  Y.  17. 
Although  no  appeal  lies  from  an  order  granting  an  alternative 
writ  of  mandamus,  yet  where  the  order  was  peremptory,  except 
as  to  a  portion  of  the  relief  prayed  for,  it  is  proper  to  consider 
the  questions  raised  and  to  pass  upon  them  on  appeal.  Matter 
of  Goodwin,  30  App.  Div.  418,  51  Supp.  355,  85  St.  Rep.  355. 
The  conclusion  of  the  trial  court  as  to  the  amount  of  damages 
upon  the  trial  of  an  alternative  writ  is  not  reviewable  by  the 
Court  of  Appeals.  People  ex  rel.  Deverell  v.  Mutual  Protective 
Union,  118  N.  Y.  109.  When  costs  are  awarded  as  a  matter  of 
discretion,  they  are  not  subject  to  review  upon  appeal.  People 
V.  Albright,  14  Abb.  Pr.  305.  And  where  no  question  is  raised 
as  to  costs  in  the  court  below,  the  question  will  not  be  consid- 
ered on  appeal.  People  ex  rel.  Twenty-third  St.  Ry.  v.  Squire, 
no  N.  Y.  667.  When  it  is  too  late  to  correct  a  former  man- 
damus by  appeal,  if  the  relator  seeks  redress  by  a  new  mandamus, 
the  former  orders  may  then  be  vacated.  People  ex  rel.  Vander- 
voort  V.  Cooper,  24  Hun,  337.  The  propriety  of  an  order  grant- 
ing the  writ  of  mandamus  will  not  be  considered  upon  an  appeal 
from  an  order  adjudging  the  defendant  to  be  in  contempt  for 
disobeying  the  writ.  People  ex  rel.  Garbutt  v.  Rochester,  etc.,  R. 
R.  Co.,  76  N.  Y.  294.  On  appeal  it  was  held  that  where  the  fact 
did  not  affirmatively  appear  that  the  relator,  before  commencing 
the  proceedings,  had  applied  to  the  party  to  whom  the  writ  was 
issued  to  correct  the  mistake,  it  was  not  a  jurisdictional  defect 
under  the  circumstances,  requiring  a  reversal  of  the  order.  Peo. 
ex  rel.  Nostrand  v.  Wilson,  119  N.  Y.  518. 


276  MANDAMUS. 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

Sub.  3.  Contempt  in  Disobeying  Writ. 
Under  the  R.  S.  (2  R.  S.  534),  providing  for  the  punishment 
as  for  a  contempt  of  the  disobedience  to  a  lawful  order,  decree,  or 
process  of  any  court  of  record,  it  was  held  that  the  language  was 
sufficient  to  embrace  disobedience  to  a  peremptory  writ  of  man- 
damus. Such  a  mandamus  was  held  to  be  an  order  of  the  court 
within  the  meaning  of  the  statute.  The  fact  that  punishment 
as  for  a  contempt  could  be  had  by  statute  (2  R.  S.  586,  §  54)  to 
compel  a  return  to  an  alternative  writ  is  not  exclusive.  The 
mode  of  compelling  a  return  to  an  alternative  writ  is  properly 
described  in  the  act  relating  to  proceedings  on  mandamus, 
but  that  does  not  weaken  the  effect  of  the  statute  relating  to 
contempts  which  renders  punishable  disobedience  to  any  law- 
ful order.  Peo.  ex  rcl.  Garbiitt  v.  R.  C.  &  L.  R.  R.  Co.,  y6 
N.  Y.  300. 

The  above  decisions  would  undoubtedly  be  applicable  under 
§  14,  Code  of  Civil  Procedure,  providing  for  punishment  as  for  a 
contempt  for  disobedience  to  the  lawful  mandate  of  the  court. 

It  should  be  noted  that  §  2073  of  the  Code  of  Civil  Procedure 
provides  for  punishment  for  a  contempt  upon  the  default  of  a 
return  to  "  the  first  writ  of  mandamus,"  unless  it  be  an  alternative 
writ  of  mandamus  and  a  demurrer  thereto  is  taken.  This  provi- 
sion seems  to  be  entirely  separate  from  contempt  proceedings 
had  upon  disobedience  to  the  peremptory  writ,  whether  the  same 
be  issued  in  the  first  instance  or  upon  the  trial  of  an  alternative 
writ.  Punishment  for  disobedience  to  the  writ  rests  upon  §  14, 
Code  Civil  Procedure,  providing  for  the  punishment  of  dis- 
obedience to  the  lawful  mandate  of  the  court. 

It  is  a  sufficient  answer  in  proceedings  to  punish  as  for  a  con- 
tempt for  disobedience  to  the  writ,  that  the  act  sought  to  be 
enforced  has  been  prohibited  by  injunction.  And  in  such  pro- 
ceedings it  is  not  proper  for  the  court  to  vacate  such  injunction. 
Pco.  ex  rcl.  Duffy  v.  Village  of  West  Troy,  25  Hun,  iSo.  It 
seems  that  where  a  board  of  supervisors  were  commanded  by 
mandamus  to  proceed  and  construct  a  bridge,  which  act  they 
could  not  perform  until  the  location  and  plans  should  have  been 
approved  by  the  secretary  of  war,  where  such  consent  of  the 
secretary  of  war  has  been  sought  in  good  faith  and  cannot  be 
procured,  it  will  excuse  delay  in  laying  out  the  bridge  in  proceed- 
ings for  contempt.     Pco.  ex.  rcl.  Kcene  v.  Siipvrs.,  142  N.  Y.  278. 


MANDAMUS.  277 


Art.  8.     Costs,  Appeals  ;  Proceedings  for  Contempt. 

An  order  was  obtained  directing  the  issuance  of  a  mandamus, 
and  a  stipulation  was  entered  into  by  the  parties  providing  that 
an  appeal  be  taken  therefrom,  and  that  no  action  be  taken  in  the 
matter  until  the  decision  in  the  Court  of  Appeals  upon  such 
appeal,  and  that  such  matter  should  be  then  acted  upon  in 
accordance  with  such  decision.  In  the  evening  of  the  same  day 
upon  which  the  Court  of  Appeals  rendered  its  decision,  the 
respondents  took  action  contrary  to  the  direction  of  the  Su- 
preme Court,  and  before  the  issuance  of  a  formal  writ  of  man- 
damus upon  the  decision  of  the  Court  of  Appeals,  which  would 
prevent  such  action  ;  Jield^  that  the  respondents  were  guilty  of 
contempt,  and  that  it  was  not  a  defence  that  a  formal  written 
mandate,  issued  to  enforce  the  decision  of  the  court,  had  not 
been  issued,  if,  at  the  time  of  taking  such  action,  they  knew  what 
such  decision  was.  Parties  who  violate  an  injunction  are  guilty 
of  contempt,  if  they  know  that  it  was  granted,  although  it  had 
not  been  served  upon  them,  and  the  same  principle  applies  upon 
the  violation  of  an  order  for  a  writ  of  mandamus.  Peo.  ex  rel. 
Piatt  V.  Rice,  80  Hun,  437,  Mayham,  J.,  dissenting,  afifirmed, 
144  N.  Y.  249. 

The  dissenting  opinion  is  based  upon  the  ground  that  though 
the  order  directing  the  issuance  of  a  writ  had  been  obtained,  such 
order  did  not  in  itself  operate  as  a  mandamus.  "  Any  other  con- 
struction would  be  giving  to  an  order  for  mandamus  all  the  effect 
of  a  writ  itself,  and  to  render  the  issuance  of  a  writ  unnecessary 
and  nugatory.  No  such  practice  could  obtain,  because  to  a  writ 
of  mandamus  there  must  be  a  return  as  required  by  §§  2073  and 
2074  of  the  Code  of  Civil  Procedure,  and  no  return  could  be 
made  to  an  order  for  a  writ."  A  respondent  cannot  be  punished 
as  for  a  contempt  in  refusing  to  obey  a  peremptory  writ,  where 
the  judge  had  no  authority  to  issue  it.  Peo.  ex  rel.  Lower  v. 
Donovan,  135  N.  Y.  ^6,  23  Civ.  Proc.  6,  reversing  S.  C.  63  Hun, 
512,  45  St.  Rep.  141, 18  Supp.  501. 


CHAPTER   VI. 

PROHIBITION.* 

PAGE. 

Article  i.  The  character  and  purpose  of  the  writ 278 

2.  When  the  writ  lies;    by  what  court  granted.     §§  2092, 

2093 281 

3.  The  alternative  writ  and  proceedings  thereon.    §§  2091, 

2094,  2095 287 

4.  Proceedings  on  return.     §§  2096,   2098,  2099 301 

5.  The    absolute   writ;    when  granted;  part  of  §§   2096, 

2 100 307 

6.  Quashing   the  writ  ;    stay  of  proceedings   and  appeal. 

§§2097,  2I02,  2101 313 

Sections  of  the  Code  and  Where  Found  in  This   Chapter. 

SEC.  ART.  PAGE. 

2091.  Kinds  of  writ ;    how  granted 3  287 

2092.  When  writ  granted  at  Special  Term 2  286 

2093.  Id. ;  by  the  appellate  division  of  the  Supreme  Court 2  286 

2094.  Alternative  writ  must  issue  first ;  its  contents 3  287 

2095.  ^^- '  when  returnable  ;  how  served 3  287 

2096.  Absolute  writ  issues,  unless  return  made 4,  5      301,  307 

2097.  Legal  objections ;  how  taken  ;  motion  to  quash  or  set  aside 

writ 6  313 

2098.  Return  by  party  ;  proceedings  when  he  adopts  judge's  return  4  302 

2099.  Proceedings  after  return ;    trial  by  jury 4  302 

2100.  Final  order ;  costs 5  307 

2101.  Appeals 6  313 

2102.  Stay  of  proceedings ;  enlargement  of  time 6  314 

ARTICLE  I. 
The  Character  and  Purpose  of  the  Writ. 

The  writ  of  prohibition  is  issued  to  forbid  a  court  to  which  it  is 
directed  from  proceeding  in  a  suit  or  matter  depending  before 
such  court  upon  the  ground  that  the  cognizance  of  such  suit  or 
action  does  not  belong  to  it.  Bacon's  Abridgment,  title  "  Pro- 
hibition." 

It  is  an  extraordinary  judicial  writ  issuing  out  of  a  court  of 
superior  jurisdiction,  and   directed  to  an   inferior   court,  and   for 

*  See  High  on  Extraordinary  Remedies,  Shortt  on   Extraordinary  Remedies,  and 
Spelling  on  same  subject. 
278 


PROHIBITION.  279 


Art.   I.     The  Character  and  Purpose  of  the  Writ. 


the  purpose  of  preventing  the  inferior  tribunal  from  usurping  a 
jurisdiction  which  does  not  belong  to  it.  It  is  used  to  keep 
inferior  courts  within  the  limits  and  bounds  prescribed  for  them 
by  law.  People  v.  Works,  7  Wend.  486  ;  People  v.  Supervisors^ 
I  Hill,  195.  And  such  being  its  object,  its  use  in  all  proper  cases 
should,  says  Judge  Sheldon,  in  Quivibo  Appo  v.  People,  20  N.  Y. 
531,  be  upheld  and  encouraged,  since  it  is  of  vital  importance  to 
the  due  administration  of  justice,  that  every  tribunal  invested 
with  judicial  functions  should  be  confined  strictly  to  the  exercise 
of  those  powers  with  which  it  has  been  by  law  intrusted. 

It  is,  however,  to  be  resorted  to  only  in  cases  where  the  usual 
and  ordinary  forms  of  remedy  are  insuf^cient  to  afford  redress, 
and  it  is  a  principle  of  universal  application,  and  one  which  lies 
at  the  very  foundation  of  the  writ  of  prohibition,  that  the  juris- 
diction is  strictly  confined  to  cases  where  no  other  remedy  exists, 
and  it  is  always  a  sufificient  reason  for  withholding  the  writ  that 
the  party  aggrieved  has  another  and  complete  remedy  at  law. 
Ex  parte  Braudlacht,  2  Hill,  367. 

Its  oilfice  is,  says  Justice  Cowen,  in  the  same  case,  to  prevent 
courts  from  going  beyond  their  jurisdiction  in  the  exercise  of 
judicial,  not  ministerial,  power ;  otherwise  the  writ  might  be 
sought  whenever  a  justice  of  the  peace  was  about  to  issue  civil  or 
-even  criminal  process  irregularly. 

The  writ  will  only  issue  to  prevent  some  action  "  which  is 
contrary  to  the  general  laws  of  the  land  ";  no  question  but  juris- 
diction can  be  tried.  Where,  however,  the  statute  has  imposed 
restrictions  as  to  the  circumstances  under  which  an  "  inferior 
court,  or  judge  thereof,"  may  act  in  matters  otherwise  within  its 
jurisdiction,  and  these  restrictions  are  disregarded,  the  party 
aggrieved  may  have  a  remedy  by  prohibition.  People  v.  Nichols, 
79  N.  Y.  582.  In  People  ex  rcl.  Adams  v.  West  brook,  89  N.  Y. 
152,  it  is  said  that  the  writ  of  prohibition  is  an  extraordinary 
remedy,  and  should  be  issued  only  in  cases  of  extreme  necessity, 
and  not  for  grievances  which  may  be  redressed  by  ordinary  pro- 
ceedings at  law  or  in  equity,  or  by  appeal,  and  it  is  not  demand- 
able  as  matter  of  right,  but  of  sound  judicial  discretion,  to  be 
granted  or  withheld  according  to  the  circumstances  of  each  partic- 
ular case.  It  does  not  lie  to  prevent  a  subordinate  court  from 
deciding  erroneously,  or  from  enforcing  an  erroneous  judgment 
in  a  case  which  it  had  a  right  to  adjudicate.      In  all  cases,  there- 


28o  PROHIBITION. 


Art.   I.     The  Character  and  Purpose  of  the  Writ. 


fore,  where  the  inferior  court  has  jurisdiction  of  the  matter  in 
controversy,  the  superior  court  will  refuse  to  interfere  by  pro- 
hibition, and  will  leave  the  party  aggrieved  to  procure  the 
ordinary  remedies  for  the  correction  of  errors.  Ex  parte  Gordon^ 
2  Hill,  363;  People  v.  Seward,  7  Wend.  518.  The  writ  of  pro- 
hibition is  a  State  writ,  and,  as  stated  in  the  note  of  the 
commissioners  in  Throop's  Code,  "  it  issues  only  to  courts  and 
judicial  officers,  acts  only  upon  legal  proceedings  pending 
before  those  tribunals,  almost  invariably  involves  pure  ques- 
tions of  law  and  aims  only  to  procure  a  stay  of  proceedings." 
Although  retained  under  the  Code,  the  writ  is  confined  in  a 
narrow  field  of  operation.  People  ex  rel.  Baldwin  v.  Goldfogle, 
62  St.  Rep.  71,  23  Civ.  Pro.  419,  30  Supp.  296. 

It  is  defined  in  McAdam  on  Landlord  and  Tenant,  page  205, 
"  as  an  extraordinary  judicial  writ  issuing  out  of  a  court  of 
superior  jurisdiction  and  directed  to  an  inferior  court  for  the  pur- 
pose of  preventing  the  inferior  tribunal  from  usurping  a  jurisdic- 
tion with  which  it  is  not  legally  vested.  It  is  the  remedy  afforded 
by  the  common  law  against  the  encroachments  of  jurisdiction  by 
inferior  courts,  and  is  used  to  keep  such  courts  within  the  limits 
and  bounds  prescribed  for  them  by  law." 

Miller,  J.,  in  United  States w.  Hoffman, d^^dW.  158,  thus  defines 
the  writ  of  prohibition  :  "  The  writ  of  prohibition,  as  its  name 
imports,  is  one  which  commands  the  person  to  whom  it  is  directed 
not  to  do  something  which  by  the  suggestion  of  the  relator  the 
court  is  informed  he  is  about  to  do.  If  the  thing  is  already  done, 
it  is  manifest  that  the  writ  of  prohibition  cannot  undo  it,  for  that 
would  require  an  affirmative  act,  and  the  only  effect  of  a  writ  of 
prohibition  is  to  suspend  the  action  and  to  prevent  any  further 
proceedings  in  the  prohibited  direction." 

It  will  be  seen  at  once  that,  in  general,  the  results  to  be 
obtained  by  a  writ  of  prohibition  may  be  also  obtained  by  injunc- 
tion. It  was  said  by  the  commissioners  in  a  note  to  the  Throop 
Code  that,  "  It  was  thought  that  this  writ  had  survived  its  prac- 
tical utility,  and  that  all  the  practical  benefits  of  the  writ  might 
be  obtained  by  means  of  an  injunction."  The  writ  was  retained, 
however,  and  it  will  be  seen  that  cases  might  arise  where  it  has 
an  advantage  over  an  injunction.  An  injunction  restrains  only 
the  parties  to  an  action  or  proceeding  and  restrains  the  lower 
court  through  its  acquiescence  only.     In  case  of  the  wilful  ignor- 


PROHIBITION,  281 


Art.  2.     Wheu  the  Writ  L,ies.     By  What  Court  Granted. 

ing  of  an  injunction  by  the  court,  there  is  no  penalty  in  the  same 
proceeding.  With  the  writ  of  prohibition,  however,  it  is  different. 
The  prohibition  issues  not  only  to  the  party  plaintiff  or  defend- 
ant, but  to  the  court  itself,  and  a  disobedience  of  the  prohibition 
will  bring  the  judge  or  the  members  of  the  court  into  contempt 
for  such  disobedience.     (See  Code  Civil  Procedure,  §  2096.) 

ARTICLE  11. 

When  the  Writ  Lies.    By  What  Court  Granted. 
§§  2092,  2093. 

Sub.  I.  When  THE  Writ  Lies. 

2.  By  What  Court  Granted.    §  2092,  2093. 

Sub.   I.  When  the  Writ  Lies. 

The  codifiers,  in  reporting  to  the  legislature  their  labors  as  ta 
this  portion  of  the  Code,  state  that  they  have  only  undertaken 
to  reach  the  methods  of  procedure,  which  they  found  exceedingly 
cumbersome  and  intricate,  and  have  confined  themselves  to  sim- 
plifying the  proceedings,  reducing  them  to  order  and  making  them 
as  brief  as  possible. 

It  will  not  go  to  restrain  an  inferior  court  from  proceeding  on 
the  ground  of  insufficiency  of  papers  on  which  process  was 
obtained,  since  the  court  itself  may  afford  ample  relief  by  appeal. 
People  V.  Marine  Court,  36  Barb.  341.  It  will  not  be  granted 
until  it  appears  that  the  party  aggrieved  has  applied  in  vain  to 
the  inferior  tribunal  for  relief,  and  is  to  be  used  with  great  cau- 
tion and  forbearance  for  the  furtherance  of  justice,  and  to  secure 
order  and  regularity  in  judicial  proceedings  when  ordinary  reme- 
dies are  not  applicable.  High  on  Ext.  Rem.  §  765.  It  issues  only 
to  prevent  the  commission  of  an  act,  and  not  to  undo  what  has 
been  already  performed.      United  States  v.  Hoffman,  4  Wall.  158. 

The  writ  will  run,  as  is  held  by  Justice  Selden,  in  Quinibo 
Appo  V.  People,  20  N.  Y.  531,  in  a  matter  of  which  a  tribunal  has 
jurisdiction  where  it  goes  beyond  its  legitimate  power,  and  when 
handling  matters  clearly  within  its  cognizance,  it  transgresses  the 
bounds  prescribed  by  law.  It  lies  to  prevent  the  exercise  of  an 
unauthorized  power  in  a  cause  or  proceeding  of  which  the  subor- 
dinate tribunal  has  jurisdiction,  and  its  scope  ought  not  to  be 
abridged,  as  it  is  far  better  to  prevent  the  exercise  of  an  unau- 


282  PROHIBITION. 


Art.  2.     When  the  Writ  Lies.     By  What  Court  Granted. 


thorized  power  than  to  be  driven  to  the  necessity  of  correcting 
the  error  after  it  is  committed.     The  writ  of  prohibition  will  lie 
to  a  commissioner   appointed  by  a  foreign  court  who  is  about  to 
issue  process  for  contempt  against  a  citizen  of  this  State,  for  his 
refusal  to   answer  certain   interrogatories,  where  it  appears  that 
the  relator  was  a  minister  of  the    Gospel,  and  was   sought  to  be 
forced  to   reveal  confidential    confessions  made   to  him  as  such. 
People  ex  rel.  Toy  v.  Mayer,  71  Hun,  182.     The  writ   of  prohibi- 
tion will  lie  against  a  surrogate  to  restrain  him  from  taking  any 
proceedings  or  issuing  any  order  to  remove  an  administrator  from 
ofifice,  where  the  decree  therefor  is  void.    The  court  says :  "  As 
the  contemplated  action  was  the  enforcement  of  a  void  decree,  it 
was  proper  that  the  writ   should  issue  in  restraint  of  it."     People 
ex  rel.  Spragiie  v.  Fitzgerald,  15  App.  Div.  539,  44  Supp.  556,  78 
St.   Rep.  556.      It  is  well  settled  that  the  writ  of  prohibition  will 
not  lie  where  there  is  a  remedy  by  appeal,  and  thus  it  was  refused 
where  a  justice  erroneously  refused  to  accept  an  undertaking  given 
to  remove  a  cause  from  a  district  court  of  New  York  to  the  Court 
of  Common  Pleas,  there  being  an  appeal  from  such  refusal.    People 
ex  rel.  Reynolds  Card  Mfg.  Co.  v.  Fourth  District  Court,  1 3  Civ. 
Pro.  134.     The  writ  will  not  issue  against  a  justice  of  an   inferior 
•court  to  restrain  him  from  proceeding  in  a  summary  proceeding 
to  recover  possession  of  land,  on  the  ground  that  he  has  not  juris- 
diction of  the  subject-matter,  where  it  is  not  proven  that  he  will 
not  decide  the  case  in  accordance  with  the  law  and  the  facts,  and 
if  proper  dismiss  the  proceeding.     People  ex  rel.  H.  P.  C.  Co.  v. 
Kelly,  12  Civ.  Pro.  414.     Prohibition  will  not  He  against  the  jus- 
tice  of  a  district  court  to   prevent   him  hearing  a  summary  pro- 
ceeding to   recover   real   property  even  though  a  plea  of  title  to 
real  estate  was  made  and  a  bond  for  the  removal  of  the  cause  was 
tendered,  because  such  justice  has  the  right  to  try  the  questions 
involved,  upon  which  trial  he  may,  if  a  question  of  title  appears 
to  be  involved,  dismiss  the  proceeding.     People  ex  rel.  Baldwin 
V.  Gold/ogle,  23  Civ.  Pro.  417,  30  Supp.  296,  62  St.  Rep.  70. 

The  writ  of  prohibition  will  lie  against  a  justice  of  the  peace 
to  restrain  the  prosecution  of  an  action,  where  the  summons  was 
served  on  a  party  attending  an  action  on  trial  at  a  circuit  in  a 
court  other  than  that  in  which  he  resided,  the  defendant  being 
exempt  from  such  service  by  law.  People  ex  rel.  Hess  v.  Tnnian, 
74  Hun,  130,  55  St.  Rep.  872,  26  Supp.  329.      The  writ  of  prohi- 


PROHIBITION.  283 


Art.   2.     When  the  Writ  Lies.     By  What  Court  Granted. 


bition  has  been  held  to  lie  against  the  judge  of  an  inferior  court 
who  proceeds  to  try,  either  himself  or  by  his  subordinate,  a  cause 
in  which  he  is  interested.  NortJi  Bloomfield  Gravel  Mm.  Co.  v. 
Keyser,  58  Cal.  315  ;  State  v.  Judge,  38  La.  Ann.  247.  Where 
a  remedy  exists  by  appeal  or  otherwise  to  correct  an  error  of 
law  or  practice,  the  writ  will  not  be  granted.  People  ex  rel.  v. 
Clnte,  42  How.  157;  People  ex  rel.  v.  Nichols,  79  N.  Y.  582. 
It  should  be  issued  only  in  cases  of  extreme  necessity  and  not  for 
grievances  which  may  be  redressed  by  ordinary  proceedings  at 
law,  or  in  equity,  or  by  appeal.  People  ex  rel.  v.  Westbrook,  89 
N.  Y.  152.  The  same  principle  is  decided  in  the  following  cases  : 
People  V.  Comuion  Pleas,  43  Barb.  278  ;  Ex  parte  B rated laeht,  2 
Hill,  367;  People  V.  Russell,  19  Abb.  136;  Szveet  v.  Hulbert,  51 
Barb.  312;  People  v.  Marine  Court,  36  id.  341  ;  People  v.  Taleott, 
21  Hun,  591.  It  is  not  intended  to  be  used  to  correct  errors 
which  may  arise  on  a  trial  and  may  be  corrected  on  appeal. 
People  V.  McAdain,  2  Civ.  Pro.  86.  It  was  not  intended  the  writ 
should  be  used  as  a  means  of  interfering  with  the  orderly  practice 
of  the  courts,  or  as  a  method  of  staying  summary  proceedings. 
People  V.  Parker,  63  How.  3  ;  People  v.  Rinell,  19  Abb.  136.  It 
is  a  preventive  and  not  a  corrective  remedy.  People  v.  Coiinnis- 
sioners  of  Excise,  61  How.  514  ;  Tlioinpson  v.  Tracy,  60  N.  Y.  31, 
The  scope  of  the  writ  and  cases  in  which  it  is  proper,  and  prin- 
ciples governing  its  use,  are  fully  discussed  in  the  case  last  cited, 
covering  very  many  of  the  matters  heretofore  discussed,  and  the 
case  will  be  found  an  authority  upon  numerous  points  as  to  the 
practice  under  the  writ  ;  among  other  things,  that  the  Revised 
Statutes  did  not  change  the  character  of  the  writ,  or  permit  any 
question  except  that  of  jurisdiction  to  be  raised  or  tried  under 
it.  This  principle  seems  to  be  equally  applicable  under  the  pres- 
ent Code.  It  is  further  held  that  an  appeal  will  not  be  restrained 
by  the  writ,  and  that  the  writ  issuing  out  of  the  Supreme  Court 
can  in  nowise  affect  the  practice  or  jurisdiction  of  the  Court  of 
Appeals,  or  the  rights  of  the  parties  to  its  process  or  a  hearing 
therein,  these  questions  being  for  that  court  to  determine.  In  a 
recent  case  reiterating  the  rule  that  the  writ  is  not  a  writ  of  right 
and  will  not  be  granted  in  a  case  where  another  adequate 
remedy  exists,  it  was  refused  against  a  referee  to  prevent  him 
from  opening  a  case  after  it  had  been  submitted.  People  v. 
County   Court  of  Kings,  23   Week.   Dig.    137.     The  writ  lies  to 


284  PROHIBITION. 


Art.  2.     When  the  Writ  Lies.     By  What  Court  Granted. 


restrain  proceedings  of  supervisors,  judicial  in  their  nature,  under 
a  notice  which  confers  no  jurisdiction.     People  v.  Supervisors,  63 
How.  41 1.     The  writ  issues  to  prevent  a  court  from  trying  a  case 
between  sailors  and   officers  of  a  foreign  vessel  where  a  treaty 
stipulated  what  courts  should  have  jurisdiction.    People  v.  Marine 
Court,  6  Hun,  214.     It  lies  to  determine  the  jurisdiction   of  sur- 
rogates of  different  counties  dependent  upon  the  residence  of  a 
decedent.     People  v.  IValdron,  52  How.  221.     It   lies  to  restrain 
the  removal  of  a  city  officer  by  the  mayor  where  he  does  not 
possess  the  power  of  removal.     In   such  a  case  the  mayor  acts 
judicially.     People  v.  Cooper,  57  How.  416.     It  will  also  issue  to 
prevent   an  officer   from   proceeding   under   an   unconstitutional 
statute.     Szveet  v.  Hulbert,   51   Barb.  312.     It   will   not   issue   to 
restrain  the  board  of  police  justices  of  New  York  City  in  appoint- 
ing and  removing  clerks  of  courts,  since  in  so  acting  they  do  not 
act  as  a  court.     Norton  v.  Dozvling,  46  How.  7.     It  will  not  inter- 
fere with  the  exercise  of  ministerial  as  distinguished  from  judicial 
powers.     People  v.  Supervisors  of  Queens,    i    Hill,  201  ;  Ex  parte 
Braudlaeht,  2  id.  367.     Nor  will  it  lie  on  a  mere  point  of  practice 
where  the  court  has  jurisdiction  of   the   general  subject  of   the 
cause.     People  v.  Marine  Court,  36  Barb.  341  ;  People  ex  rel.  v. 
Oyer  and  Terminer,  27  How.  14;  People  v.  Russell,  49  Barb.  351, 
14  Abb.  266.     It  will  not  be  granted  to  a  relator  who  has  been 
aggrieved  because  of  the  irregularity  of  the  form  of  a  judgment 
and  who  has  a  plain  remedy  by  application  to  the  court,  which 
rendered  it,  f'or  correction,  even   if  a  court   is  assuming  to  act 
without  authority,  and  the  relator  can  protect  himself  by  proper 
objections  and  by  exceptions  when  the  case  is  on  trial,  and  by 
appeal    from    the    decision.     People  ex  rel.    Salke  v.  Talcoti,  21 
Hun,  591.     A  writ   of   prohibition   will   not   issue   to   prevent  a 
judge  of  a  district  court   in  New  York   City   from   entertaining 
and  acting  on  an  application  to  open  a  default  taken  before  him. 
People  ex  rel.  Liunm  v.  Langhein,  12  Week.  Dig.  20.     There  must 
be  a  violation  of  a  statutory  restriction   or  an   unlawful  exercise 
of  jurisdiction  ;  an  error  in  practice  affords   no   grounds   for  the 
writ.     People  ex  rel.  Mayor  v.  Nichols,  79  N.  Y.  582.     It  does  not 
lie  when  a  court  has  only  overruled   preliminary  objections  and 
the  relator  can  have  a  remedy  against  a  final  order  by  injunction. 
People  ex  rel.  Cook  v.  Parker,  63  How.  3.     The  common-law  rule 
that  prohibition  is  a  preventive  remedy  and  not  a  corrective  one 


PROHIBITION.  285 


Art.  2.     When  the  Writ  Lies.     By  What  Court  Granted. 


is  said,  in  People  ex  rel.  Gould  v.  Conuuissioners  of  Excise  of  Nezv 
York,  61  How.  514,  not  to  have  been  changed  by  the  Code  of 
Civil  Procedure.  A  writ  when  granted  will  not  operate  to  re- 
strain the  party  named  therein  generally,  or  from  doing  any  act 
save  proceeding  in  the  prohibited  suit  or  matter.  Thompson  v. 
Tracy,  60  N.  Y.  31.  The  writ  will  not  be  issued  to  restrain  a 
surrogate  from  taking  proof  of  a  will  offered  for  probate  on  the 
ground  that  the  decedent  was  not  a  resident  of  the  county, 
under  the  rule  that  it  will  not  be  allowed  where  the  relator  has 
an  adequate  remedy  by  appeal.  People  ex  rel.  James  v.  Surro- 
gate of  Putnam,  36  Hun,  218.  While  a  magistrate  is  proceeding 
within  the  scope  of  his  jurisdiction  and  is  chargeable  with  no 
malice  or  misconduct,  his  proceedings  cannot  be  arrested  by  the 
writ  of  prohibition,  however  erroneous  or  irregular  his  decisions 
may  be.  People  ex  rel.  Smith  v.  Grogan,  3  N.  Y.  Crim.  R.  335, 
citing  the  leading  cases.  The  writ  will  not  issue  to  determine 
whether  a  surrogate  is  a  creditor  where  citation  is  issued  on  his 
own  petition  to  executors,  he  acting  as  receiver  and  another 
person  acting  as  surrogate  under  the  statute.  This  is  properly 
determined  on  appeal.  People  ex  rel.  Oakly  v.  Petty,  32  Hun, 
443.  Where  an  accused  person  elects  to  be  tried  by  court  having 
jurisdiction,  a  writ  of  prohibition  will  not  be  granted  against  the 
court,  though  its  judgment  is  erroneous,  if  there  is  a  remedy  by 
appeal.  People  ex  rel.  Vatham  v.  Court  of  Special  Sessioiis,  N.  Y. 
Daily  Register,  Jan.  3,  1884. 

The  writ  of  prohibition  will  not  issue  to  restrain  summary 
proceedings  where  the  petition  presents  facts  proper  for  the 
consideration  of  the  officer  to  whom  it  is  directed,  but  defendant 
should  litigate  the  matter  in  the  proceeding.  People  ex  rel. 
Browne  v.  McAdam,  ?  Civ.  Pro.  52.  Where  the  justice  has  juris- 
diction of  the  case  and  the  subject-matter,  prohibition  is  not 
proper.  People  ex  rel.  v.  McAdam,  84  N.  Y.  287,  reversing  22 
Hun,  559.  Where  the  justice  has  jurisdiction  of  the  proceedings 
the  writ  will  not  lie  to  restrain  the  execution  of  the  warrant  to 
dispossess  the  tenant,  upon  the  ground  of  an  error  of  the  justice 
in  the  proceedings.  The  remedy  is  by  appeal.  Citing  Knox  v. 
McDonald,  25  Hun,  268  ;  People  v.  Letson,  3  How.  (N.  S.)  381.  Pro- 
hibition will  lie  where,  although  there  is  jurisdiction  on  proper 
allegations  in  general,  yet  there  is  none  on  the  facts  stated  in 
the  applicant's  affidavit  for  the  order  to  show  cause.     The  juris- 


286  PROHIBITION. 

Art.   2.     When  the  Writ  Lies.     By  What  Court  Granted. 

diction  is  special  and  limited,  and  the  magistrate  is  strictly  con- 
fined to  the  terms  of  the  act ;  a  cause  must  be  shown  by  the 
papers  which  is  within  the  statute  before  the  magistrate  can  act. 
People  ex  rel.  v.  McAdain,  22  Hun,  559,  reversed  on  another 
point,  84  N.  Y.  287,  supra.  A  writ  of  prohibition  should  not 
issue  except  where  the  court  has  no  jurisdiction  or  is  proceeding 
in  excess  of  its  jurisdiction.  The  remedy  for  any  error  in  the 
proceeding  itself,  or  for  any  wrongful  decision  by  the  justice, 
is  by  appeal.  People  ex  rel.  v.  Gold/ogle,  23  Civ.  Pro.  417. 
While  an  action  was  pending  in  the  city  court  of  New  York, 
the  defendant  was  adjudged  a  lunatic,  and  her  committee  ap- 
peared as  a  party  and  set  up  a  defence  that  no  leave  to  sue  him 
had  been  granted,  held,  that  the  city  court  could  not  proceed,  and 
that  the  Supreme  Court  could  restrain  it  from  so  doing.  Mat- 
ter ofDelehunty,  28  Abb.  N.  C.  245,  44  St.  Rep.  836,  18  Supp.  395. 
Where  an  action  of  the  board  of  supervisors  was  being  taken 
for  the  purpose  of  collecting  the  expenses  paid  by  the  county 
for  the  support  of  indigent  and  insane  persons,  not  paupers,  from 
the  respective  towns  wherein  they  resided  when  sent  to  the 
asylum,  held,  that  the  issuing  of  a  writ  of  prohibition  to  restrain 
such  action  was  proper.  People  ex  rel.  Tozvn  of  Blenheim  v. 
Supervisors  of  Schoharie,  121  N.  Y.  345,  reversing  49  Hun,  308. 

Sub.  2.   By  What  Court  Granted. 

§  2092.  When  writ  granted  at  Special  Term. 

Except  where  special  provision  therefor  is  otherwise  made  in  this  article,  an  alterna- 
tive writ  of  prohibition  can  be  granted  only  at  a  Special  Term  of  the  court.  In  the 
Supreme  Court  the  Special  Term  must  be  one  held  within  the  judicial  district  embrac- 
ing the  county  wherein  the  action  is  triable  or  the  special  proceeding  is  brought,  in  the 
course  of  which  the  matter  sought  to  be  prohibited  by  the  writ  originated. 

L.  1873,  ch.  70,  §  I  ;  see  §  2068. 

§2093.  [Am'd,  1895.]  Id.;  by  the  appellate  division  of  the 
Supreme  Court. 

An  alternative  writ  of  prohibition  may  be  granted  at  a  term  of  the  appellate  division 
of  the  Supreme  Court  only,  directed  generally  to  any  judge  holding,  or  to  hold,  a 
Special  Term  of  the  same  court,  or  directed  to  one  or  more  judges  of  the  same  court, 
named  therein,  in  any  case  where  such  a  writ  may  be  issued  out  of  the  Supreme  Court, 
directed  to  any  other  court  or  to  a  judge  thereof.  Such  a  writ  can  be  granted  only  at 
the  term  of  the  appellate  division  of  the  judicial  department  embracing  the  county 
wherein  the  action  is  triable  or  the  special  proceeding  is  brought,  in  the  course  of 
which  the  matter  sought  to  be  prohibited  by  the  writ  originated,  unless  a  term  of  the 
appellate  division  of  said  department  is  not  in  session  ;  in  which  case  it  may  be  granted 
at  a  term  of  the  appellate  division  in  an  adjoining  judicial  department. 


PROHIBITION.  287 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

ARTICLE  III. 

The     Alternative    Writ    and    Proceedings    Thereon. 
§§  2091,  2094,  2095. 

§  2091.  Kinds  of  writ;  how  granted. 

A  writ  of  prohibition  is  either  aUemative  or  absolute.  The  alternative  writ  may  be 
granted  upon  an  affidavit,  or  other  written  proof,  showing  a  proper  case  therefor,  and 
either  with  or  without  previous  notice  of  the  application,  as  the  court  thinks  proper. 

§  2094.  Alternative  writ  must  issue  first;  its  contents. 

Except  as  otherwise  specially  prescribed  by  law,  an  absolute  writ  of  prohibition  cannot 
be  issued  until  an  alternative  writ  has  been  issued  and  duly  served  and  the  return  day 
thereof  has  elapsed.  The  alternative  writ  must  be  directed  to  the  court  in  which,  or 
to  the  judge  before  whom,  and  also  to  the  party  in  whose  favor,  the  proceedings  to  be 
restrained  were  taken,  or  are  about  to  be  taken.  It  must  command  the  court  or  judge 
and  also  the  party  to  desist  and  refrain  from  any  further  proceedings  in  the  action  or 
special  proceeding,  or  with  respect  to  the  particular  matter  or  thing  described  therein, 
as  the  case  may  be,  until  the  further  direction  of  the  court  issuing  the  writ ;  and  also  to 
show  cause,  at  the  time  when,  and  the  place  where,  the  writ  is  made  returnable,  why 
they  should  not  be  absolutely  restrained  from  any  further  proceedings  in  that  action, 
special  proceeding,  or  matter.  The  writ  need  not  contain  any  statement  of  the  facts- 
or  legal  objections  upon  which  the  relator  founds  his  claim  to  relief. 

L.  1873,  *^h.  70,  §  61,  in  part ;  see  §  2076, 

§  2095.     [Am'd,  1895.]     Id.;  when  returnable;  how  served. 

The  writ  must  be  made  returnable,  either  forthwith  or  at  a  day  certain,  before  the  term 
which  granted  it,  or  upon  the  first  day  of  a  future  term  therein  specified  at  which  appli- 
cation for  the  writ  might  have  been  made.  Where  it  is  granted  at  a  term  of  the  appellate 
division  in  a  judicial  department  adjoining  that  wherein  the  matter  originated,  it  may, 
in  the  discretion  of  the  court,  be  made  returnable  at  a  term  of  the  appellate  division  of 
either  department.  The  writ  must  be  served  on  the  court  or  judge,  and  also  upon  the 
party,  as  prescribed  by  law  for  the  service  of  an  alternative  writ  of  mandamus.  A 
copy  of  the  papers  upon  which  it  was  granted  must  be  delivered  with  each  copy  of  the 
writ. 

Petition  for  Writ.     (74  Hun,  130.) 

To  the  Supreme  Court  0/  the  State  of  New  York  : 

The  petition  of  Frederick  Hess,  by  Thomas  Richardson,  of  Illion, 
Herkimer  County,  N.  Y. ,  as  his  attorney  in  fact  and  at  law,  respect- 
fully shows  to  the  court  : 

That  your  petitioner,  said  Frederick  Hess,  resides  in  the  town  of 
Long  Lake,  in  the  county  of  Hamilton,  in  the  State  of  New  York, 
and  has  there  resided  for  the  space  of  upwards  of  one  year.  That 
on  or  about  the  3d  day  of  November,  1892,  Horace  Inman,  who 
resides  and  then  resided  in  the  city  of  Amsterdam,  in  the  county  of 
Montgomery,  said  State,  commenced  an  action  in  the  Supreme  Court 
of  said  State,  as  sole  plaintiff,  against  your  petitioner  as  sole  defend- 
ant, laying  and  making  the  place  of  trial  in  Montgomery  County, 
said  action  having  been  commenced  by  the  personal  service  of  a 
summons  upon  your  petitioner  at  his  said  residence  in   the  town   of 


288  PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

Long  Lake.  That  your  petitioner  retained  the  firm  of  Thomas 
&  A,  D.  Richardson,  who  resided  at  Illion,  Herkimer  County,  N.  Y. , 
-and  who  are  attorneys  of  the  Supreme  Court,  as  his  attorneys  to 
defend  such  action. 

That  issue  was  joined  in  said  action  by  the  service  of  an  answer 
upon  H.  B.  Waldron,  the  plaintiff's  attorney,  by  said  Thomas  & 
A.  D.  Richardson  on  or  about  the  loth  day  of  December,  1892, 
and  that  the  case  was  duly  placed  on  the  calendar  of  and  for  the 
January  term  of  the  Circuit  Court,  held  in  Montgomery  County,  also 
by  both  parties. 

That  on  Friday,  January  20,  1893,  the  said  cause  was  duly  called 
in  its  order  for  trial  at  said  Circuit,  his  Honor,  Justice  Stover,  presid- 
ing, and  the  trial  of  the  same  was  duly  moved  by  your  petitioner 
through  his  attorneys  ;  and  that  the  plaintiff's  attorney  and  counsel 
announced  that  they  were  not  ready  for  trial  on  the  part  of  the  plain- 
tiff, by  reason  of  the  fact  of  the  plaintiff's  absence,  and  that  they  could 
not  safely  proceed  to  trial  without  him,  and  that  he  was  a  material 
witness  in  his  own  behalf;  whereupon,  on  motion  of  the  defendant, 
the  complaint  in  said  action  was  dismissed,  and  an  order  dismissing 
it  was,  as  your  petitioner  is  informed  and  believes,  entered  by  the 
clerk  in  attendance  upon  said  court  in  his  minutes  of  the  proceedings 
of  said  court.  But  no  further  or  formal  order  and  no  judgment  has 
been  entered  in  said  cause. 

That  the  sessions  of  the  said  Circuit  Court  were  held  at  the  city 
council  chambers  in  the  city  of  Amsterdam,  which  for  said  purposes 
constituted  the  court-room  or  court-house,  and  said  room  was  situated 
in  the  upper  story,  reached  by  three  or  four  flights  of  stairs. 

That  upon  the  direction  of  the  court  dismissing  the  complaint,  and 
before  your  petitioner  had  left  the  court-room,  and  before  he  had  had 
time  to  leave  the  court-room,  he  was  called  by  some  one  represent- 
ing himself  as  a  constable,  just  outside  of  the  door  of  the  court-room, 
a  few  feet,  on  the  landing  leading  into  the  court-room,  and  was 
there  served  with  a  summons,  a  copy  of  which  is  hereto  annexed. 
That  your  petitioner  was  attending  the  said  circuit  court  solely  as  a 
party  and  as  a  witness  in  his  own  behalf  in  said  action  in  the 
Supreme  Court,  and  that  he  was  a  necessary  and  material  witness. 
That  the  court  was  still  in  session  when  the  said  justice's  court  sum- 
mons was  served  upon  your  petitioner  as  aforesaid. 

That  your  petitioner  was  brought  before  the  jurisdiction  of  the 
justice  of  the  peace  who  issued  said  summons  by  and  in  consequence 
of  his  attendance  at  said  Circuit  Court,  and  that  the  said  justice 
thereof  would  have  had  no  jurisdiction  over  the  person  of  your  peti- 
tioner had  he  not  been  brought  within  said  county  of  jMontgomery 
by  and  through  his  attendance  as  aforesaid  on  the  said  Circuit  Court. 

That,  as  your  petitioner  is  informed  and  believes,  the  action  in  said 
justices'  court  is  brought  by  the  said  Horace  Inman  as  sole  plaintiff 
against  your  petitioner  as  sole  defendant  for  the  same  identical  cause 
of  action  for  which  the  said  action  was  brought  in  the  Supreme  Court, 
which  last  named  action  is  still  pending. 

That  your  petitioner  is  informed  and  believes  that  said  service  of 
said  justice's  summons  upon  him  was  in  the  actual  or  constructive 


PROHIBITION,  289 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

presence  of  said  Circuit  Court,  then  and  there  being  held  as  afore- 
said ;  and  that  it  was  a  violation  of  the  rights  of  your  petitioner  by 
reason  of  the  facts  aforesaid,  and  of  the  protection  to  which  he  was 
entitled  as  a  party  and  as  a  witness  aforesaid,  and  that  the  service 
upon  your  petitioner  as  aforesaid  constituted  a  contempt  of  the 
Supreme  Court,  and  of  the  Circuit  Court,  then  and  there  being  held 
as  aforesaid,  and  of  the  justice  presidnig  at  the  said  court. 

Wherefore,  your  petitioner  prays  that  a  writ  of  prohibition  be  issued 
out  of  this  court,  directed  to  A.  B.  Flansburgh,  the  justice  of  the 
peace  who  issued  said  summons,  and  to  Horace  Inman,  the  plaintiff 
therein. 

FREDERICK  HESS. 

By  THOMAS  RICHARDSON, 

Ifis  Attorney  in  Fact  and  at  Law. 

{Add  verificatio7i. ) 

Petition  for  Writ.     (15  App.  Div.  531.) 

SUPREME  COURT   OF   THE    STATE  OF    NEW   YORK,    in   the 

Second  Judici.\l  District. 
City  and  County  of  New  York,  ss.  : 

Edward  Sprague,  being  duly  sworn,  says  that  he  and  Abigail 
Journeay,  of  the  county  of  Richmond,  are  administrators  of  the  estate 
of  David  H.  Journeay,  deceased,  and  were  duly  appointed  by  the 
surrogate  of  the  county  of  Richmond.  That  on  the  4th  day  of  October, 
1894,  Mary  L.  Englebrecht,  one  of  the  next  of  kin  of  the  above-named 
decedent,  filed  a  petition  in  said  surrogate's  court  for  the  removal 
of  said  administrators  upon  charges  of  conspiracy  and  misconduct 
in  relation  to  a  certain  promissory  note  made  by  the  decedent  to 
his  mother,  Abigail  Journeay,  and  the  conduct  of  the  litigation  in 
reference  to  the  same  ;  and  the  said  surrogate,  being  within  prohibited 
degrees  of  relationship  to  the  said  parties,  the  matter  was  taken 
before  Thomas  W.  Fitzgerald,  Esq.,  district  attorney  of  said  county, 
as  acting  surrogate,  and  a  citation  was  issued  thereupon  to  the  said 
administrators  to  show  cause  why  they  should  not  be  removed,  a 
copy  of  which  petition  and  citation  are  hereto  annexed. 

An  answer  to  the  said  petition,  verified  November  12,  1894,  deny- 
ing all  the  allegations  of  conspiracy  or  misconduct  alleged  in  the 
petition,  was  filed,  a  copy  of  which  is  hereto  annexed,  and  a  trial 
was  had  before  said  acting  surrogate  upon  the  issue  so  raised,  occu- 
pying many  hearings  and  a  long  period  of  time.  Upon  the  close  of 
the  proofs  presented  by  the  petitioner  the  said  administrators  moved 
for  a  dismissal  of  the  said  petition  on  the  ground  that  no  facts  had  been 
proved  to  authorize  their  removal.  The  said  acting  surrogate  there- 
upon found  that  the  said  administrators  were  not  guilty  of  the  mis- 
conduct charged  in  the  petition  and  that  no  ground  had  been  estab- 
lished for  their  removal,  and  that  the  petition  and  charges  therein 
contained  should  be  dismissed,  as  appears  by  his  decision  bearing 
date  July  10,  1895,  and  by  certain  additional  findings  bearing  date 
August  16,  1895,  copies  of  which  are  hereto  annexed.     That  the  con- 


290  PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Tlaereon. 

spiracy  and  misconduct  alleged  in  the  petition  were  that  the  said 
administrators  had  conspired  together  by  means  of  a  certain  false 
and  fraudulent  promissory  note  to  swindle  the  estate,  and  in  an 
action  brought  in  the  Supreme  Court  against  the  said  estate  upon 
said  note  by  laying  a  trap  and  drawing  the  answer  to  the  complaint 
in  said  action  to  deceive  the  said  petitioner  and  her  counsel,  so  that 
they  were  defeated  in  the  action. 

The  fact  was,  however,  and  the  acting  surrogate  so  found, 
that  the  said  answer  was  drawn  and  dictated  by  the  counsel  for 
the  said  petitioner,  and  the  trial  of  the  case  conducted  by  him, 
and  that  said  petitioner  and  her  counsel  were  alone  responsible 
for  any  error  committed  therein,  and  that  the  administrators 
had  done  everything  that  was  necessary  and  proper  upon  their 
part  to  enable  the  petitioner  to  litigate  any  and  all  defences 
which  she  thought  the  facts  of  the  case  justified,  and  that  a  verdict 
was  rendered  for  the  plaintiff  in  said  action,  and  that  the  adminis- 
trators upon  the  dismissing  of  said  petition  allowed  an  appeal  to  be 
taken  to  the  General  Term  of  the  Supreme  Court  and  to  be  argued 
and  conducted  by  her  own  counsel,  and  that  said  judgment  was  in 
all  respects  affirmed. 

Deponent  further  says  that,  notwithstanding  the  decision  as  afore- 
said, the  said  acting  surrogate  made  a  decree  thereon,  bearing  date 
August  16,  1895,  and  entered  in  the  office  of  the  surrogate  of  said 
county  on  the  17th  day  of  August,  1895,  whereby  he  directed  that 
the  said  administrator,  Edward  Sprague,  within  four  days  after 
the  service  upon  him  of  a  copy  of  the  decree,  and  certain  other 
papers  named  in  said  decree,  take  an  appeal  from  the  said  judgment 
of  "the  General  Term  of  the  Supreme  Court  affirming  judgment  on 
said  promissory  note  to  the  Court  of  Appeals,  and  that  if  he  failed  to 
do  so  the  said  petitioner,  Mary  E.  Englebrecht,  might  apply  to  the 
court  for  the  immediate  removal  of  both  of  said  administrators,  ex 
parte,  and  for  her  appointment  as  administratrix  of  said  estate, and  also 
directing  that  the  costs  and  expenses  of  the  proceeding,  including 
allowances  to  the  said  petitioner  amounting  to  $830,  be  paid  out  of 
the  estate,  a  copy  of  which  decree  is  hereto  annexed. 

Deponent  further  says  that  he  has  taken  an  appeal  from  the  said 
decree  to  the  General  'rerm  of  the  Supreme  Court,  and  has  caused  a 
bond  to  be  given  and  filed  in  pursuance  of  statute,  and  that  the  exe- 
cution of  said  decree  and  all  proceedings  under  it  are,  as  he  is 
■advised,  thereby  lawfully  stayed,  pending  said  appeal  ;  but  he  is 
informed  and  believes,  notwithstanding  said  stay,  and  in  violation 
thereof,  that  the  said  acting  surrogate  and  said  petitioner,  without 
any  power,  jurisdiction,  or  authority  of  law,  threaten,  intend,  and 
arc  about,  at  the  expiration  of  the  time  allowed  in  said  decree  for 
your  petitioner  to  comply  with  said  order,  and,  upon  his  failure  to 
do  so,  to  wit,  on  the  23d  day  of  August,  1895,  to  make  an  order  ex 
parte,  and  without  notice,  forthwith  removing  your  petitioner  and 
also  the  said  Abigail  Journeay,  as  administrators  of  said  estate,  and 
appointing  the  said  petitioner,  Mary  L.  Englebrecht,  administratrix 
in  their  place  and  stead. 

Your  petitioner  further  says  that  he  is  advised  and  verily  believes 


PROHIBITION.  291 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

that  the  said  acting  surrogate  had  no  power,  jurisdiction,  or  authority 
to  make  the  order  directing  the  said  administrators  to  appeal  to  the 
Court  of  Appeals  from  the  said  judgment  of  the  General  Term  of  the 
Supreme  Court  in  any  event,  but  particularly  after  a  fair  trial  upon 
the  merits,  and  a  verdict  for  the  plaintiff,  and  the  aftiimance  of 
judgment  by  the  General  Term,  or  to  compel  them  to  allow  the 
attorney  for  your  petitioner  to  take  the  proceedings  in  said  action 
named  in  said  decree  in  their  name. 

That  he  has  no  power,  jurisdiction,  or  authority  to  remove  the 
said  administrators  for  disobedience  to  said  order  or  decree,  without 
notice  or  hearing,  and  upon  the  ex  parte  application  of  the  said  peti- 
tioner, nor  in  any  other  manner  than  that  prescribed  by  statute,  to 
wit,  upon  petition  and  charges  to  be  approved,  and  a  citation  duly 
issued  ;  and  the  said  acting  surrogate  has  no  power,  jurisdiction,  or 
authority  to  appoint  the  said  petitioner  as  administratrix  without  the 
issuance  of  a  citation  to  the  next  of  kin  equally  entitled  with  her 
to  administer,  to  wit,  to  her  sister,  Susan  Sprague,  next  ot  kin  to  the 
decedent,  with  said  Mary  L.  Englebrecht,  and  equally  entitled  with 
her  to  administer. 

Your  petitioner  further  says  that  he  is  advised  and  believes  that 
the  order  of  removal  of  said  acting  surrogate  will  not  only  be  with- 
out jurisdiction  or  authority  of  law,  but  will  be  oppressive  to  said 
administrators,  and  that  adequate  relief  can  only  be  had  by  a  writ  of 
prohibition  restraining  the  said  acting  surrogate  from  further  pro- 
ceedings in  such  matter  or  under  said  decree  or  order  in  said 
proceeding. 

Wherefore,  your  petitioner  prays  this  court  for  himself  and  for  said 
Abigail  Journeay  for  a  writ  of  prohibition  to  issue  out  of  this  court  to 
the  surrogate's  court  of  Richmond  County,  and  Thomas  W.  Fitzgerald, 
district  attorney  and  acting  surrogate  of  said  county,  and  to  Mary 
L.  Englebrecht,  prohibiting  the  said  surrogate's  court  and  the  said 
district  attorney  and  acting  surrogate  from  taking  any  proceeding 
under  said  decree  for  the  removal  of  the  said  Edward  Sprague  and 
Abigail  Journeay,  administrators  of  David  H.  Journeay,  or  either  of 
them,  for  the  appointment  of  said  Mary  L.  Englebrecht  or  any  other 
person  as  administratrix  or  administrator  in  their  place,  or  for  the 
enforcement  of  said  decree  in  that  behalf,  and  prohibiting  and 
restraining  the  said  Mary  L.  Englebrecht  from  carrying  into  effect  or 
proceeding  upon  said  decree,  and  for  such  other  and  further  relief  as 
may  be  just. 

And  deponent  further  says  that  no  prior  application  has  been  made 
for  such  writ.  EDWARD  SPRAGUE. 

{Add  acknowledgment.^ 


292 


PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 


Precedent  for  Order  for  Alternative  Writ  by   Special  Term. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house  at 
Caldwell,  in  and  for  the  fourth  'udicial  district,  on  the  21st  day  of 
March,  1886  : 

Present: — Hon.  Joseph  Potter. 


The  People  ex  rel.  Henry  C.  Adams, 

agst. 

Zerah  S.  Westbrook,  Surrogate  of  the  County 
of  Montgomery,  and  Jacob  C.  Nellis,  Execu- 
tor, etc.,W  Peter  G.  Fox,  deceased. 


-89  N.  Y.  152. 


On  reading  and  filing  the  affidavit  of  Henry  C.  Adams,  it  is  ordered 
that  a  writ  of  prohibition  issue  out  of  this  court  to  the  surrogate's 
court  of  Montgomery  County,  and  Zerah  S.  Westbrook,  surrogate,  and 
to  Jacob  C.  Nellis,  executor,  etc.,  commanding  the  said  court  to  desist 
and  refrain  from  making  any  distribution  whatever  of  the  funds  of  the 
estate  of  Peter  G.  Fox,  deceased,  and  from  the  publication  of  notice  of 
such  distribution  to  the  creditors  of  said  deceased  until  the  final  de- 
cision of  the  Supreme  Court  in  the  action  therein  described,  and  that 
said  writ  be  returnable  on  the  second  Tuesday  of  April  next,  at  the 
opening  of  the  court  on  that  day,  at  the  chambers  of  the  Hon.  Joseph 
Potter,  at  Whitehall.  JOSEPH  POTTER, 

Justice. 

Order  to  Show  Cause  with  Stay:— Short  Form. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  chambers  of  the 
justice  of  the  city  of  Amsterdam,  in  and  for  the  fourth  judicial  dis- 
trict, on  the  24th  day  of  January,  1893: 

Present : — Hon.  Martin  L.   Stover,  Justice. 


People  ex  rel.  Frederick  Hess 

at^st. 

A.   B.  Flansburgh,  a  justice  of   the  peace,  etc., 
and  Horace   Inman. 


.74  Hun,  150. 


On  reading  and  filing  the  petition  of  Frederick  Hess,  by  Thomas 
Richardson,  his  attorney  in  fact  and  at  law,  verified  January  23d,  1893, 
and  the  affidavit  of  Frederick  Hess  verified  January  20th,  1893,  it  is 

Ordered,  that  a  writ  of  prohibition  issue  out  of  this  court  to  A.  B. 
Flansburgh,  justice  of  the  peace  in  and  for  the  county  of  Montgomery, 
and  to  Horace  Inman,  defendants,  commanding  said  justice  and  said 
Horace  Inman  to  desist  and  refrain  from  any  and  all   further  proceed- 


PROHIBITION. 


293 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

ings  in  a  certain  action  commenced  in  the  court  of  the  said  justice  of 
the  peace  on  the  20th  day  of  January,  1893,  by  said  Horace  Inman  as 
plaintiff  against  Frederick  Hess,  relator  herein,  as  defendant,  and  now 
pending  in  said  justices'  court,  until  the  further  direction  of  this  court ; 
and  that  the  said  defendant  show  cause  at  a  Special  Term  of  this  court 
on  the  fourth  Tuesday  of  February,  1893,  at  the  opening  of  court  on 
that  day,  at  the  chambers  of  Hon.  Martin  L.  Stover,  in  the  city  of 
Amsterdam,  why  they  should  not  be  absolutely  restrained  from  any  fur- 
ther proceeding  in  that  action. 

Enter  in  Montgomery  County.  M.  L.   S. 

Order  to  Show  Cause  with  Stay,  with   Full  Recitals. 

(15  App.  Div.  531.) 

The  People  of  the  State  of  New  York  to  Thomas  W.  Fitzgerald,  Dis- 
trict Attorney  and  Acting  Surrogate  of  the  County  of  Richnunid,  in 
said  State,  and  to  Mary  L.  Englebrecht,  greeting  : 
Whereas,  Edward  Sprague,  of  the  said  county  of  Richmond,  has  pre- 
sented to  the  Supreme  Court  of  the  State  of  New  York  the  facts  upon 
affidavit,  and  the  papers  accompanying  the  same,  that  he  and  Abigail 
Journeay  were  duly  appointed  administrators  of  David  H.  Journeay, 
deceased ;  that  Mary  L.  Englebrecht,  one  of  the  next  of  kin  of  said 
decedent,  took  proceedings  before  Thomas  W.  Fitzgerald,  district  at- 
torney and  acting  surrogate  (the  surrogate  of  said  county  being  dis- 
qualified) for  the  removal  of  the  said  administrators  upon  charges  of 
alleged  conspiracy  and  misconduct;  that  the  said  administrators  duly 
filed  an  answer  denying  said  charges,  and  a  trial  was  had  before  said 
acting  surrogate,  who  found  the  said  administrators  were  not  guilty  of 
said  charges,  and  that  there  was  no  ground  for  their  removal,  and  a 
decree  to  that  effect  was  duly  entered  by  him  in  the  surrogate's  court 
of  said  county  on  the  17th  day  of  August,  1895  ;  but  that  said  surro- 
gate made  and  inserted  in  said  decree,  without  any  jurisdiction,  power, 
or  authority  of  law,  an  order  that  the  said  Edward  Sprague,  as  adminis- 
trator of  said  estate,  should  appeal  to  the  Court  of  Appeals  from  a 
certain  judgment  of  the  General  Term  of  the  Supreme  Court,  affirming 
the  judgment  obtained  by  David  H.  Sprague  against  said  administra- 
tors for  the  recovery  of  a  promissoiy  note  of  $5,000,  made  by  said  de- 
cedent, upon  a  trial  had  before  Hon.  Edgar  M.  Cullen  and  a  jury,  re- 
sulting in  a  verdict  for  the  plaintiff  establishing  the  validity  of  said 
note  ;  that  said  acting  surrogate  further  made  and  inserted  in  said  de- 
cree, without  any  jurisdiction,  power,  or  authority  of  law,  an  order  that 
if  the  said  Mar}'^  L.  Englebrecht,  who  was  desirous  that  the  said 
Edward  Sprague  should  allow  her  attorney  to  make  application  for  a 
new  trial  in  said  action,  or  take  any  proceedings  in  the  Supreme  Court 
in  said  action ;  and  to  prepare  and  certify  such  papers  in  the  name  of 
said  administrators  as  should  present  the  said  questions  desired  by  the 
said  Mary  L.  Englebrecht,  and  in  like  manner  without  jurisdiction, 
power,  or  authority  of  law,  did  make  and  insert  in  said  decree  a  further 
order  that  the  said  Mary  L.  Englebrecht  might  take  an  ex  parte  appli- 


294  PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

cation  to  the  said  acting  surrogate  for  the  immediate  removal  of  the 
said  administrators  should  the  said  administrators  disregard  the  said 
unauthorized  provisions  and  directions  of  said  decree;  that  the  said 
administrators  have  taken  an  appeal  from  said  decree  to  the  General 
Term  of  the  Supreme  Court,  and  have  filed  an  undertaking  in  pursu- 
ance of  the  statute,  but  that  the  said  acting  surrogate  and  the  said  Mary 
L.  Englebrecht  threaten  and  intend  and  are  about,  at  the  expiration  of 
the  time  allowed  for  said  Edward  Sprague  to  comply  with  said  order 
and  decree,  to  wit,  the  23d  day  of  August,  1895,  and  upon  his  failure  to 
do  so,  to  make  an  order  ex  parte,  and  without  notice  and  without  fur- 
ther petition,  citation,  or  hearing,  and  without  issuing  a  citation  to 
Susan  Sprague,  a  sister  of  said  Mary  L.  Englebrecht  and  next  of  kin 
to  said  decedent,  and  equally  entitled  to  administer  on  said  estate,  and 
appointing  the  said  Mary  L.  Englebrecht  administratrix  in  their  place ; 
and  that  the  order  of  removal  by  said  surrogate  and  appointment  of 
said  Mary  L.  Englebrecht  as  administratrix  in  their  stead  will  not  only 
be  without  jurisdiction  or  authority  of  law,  but  will  be  oppressive  to 
said  administrators  and  to  the  said  Abigail  Journeay  as  one  of  the  next 
of  kin,  and  that  adequate  relief  can  only  be  had  by  a  writ  of  prohi- 
bition restraining  the  said  acting  surrogate  and  Mary  L.  Englebrecht 
from  further  proceedings  in  such  matter  and  under  said  decree  and 
order ;  wherefore,  the  said  Edward  Sprague  and  Abigail  Journeay  have 
prayed  relief  of  our  said  court  and  our  order  of  prohibition  on  that  behalf. 

We,  therefore,  being  willing  that  the  laws  and  customs  of  our  State 
should  be  observed,  and  that  our  citizens  should  in  no  wise  be  op- 
pressed, do  command  you  that  you  desist  and  refrain  from  taking  any 
proceedings  under  said  decree  made  and  entered  by  you,  Thomas  W. 
Fitzgerald,  in  the  surrogate's  court  of  Richmond  County  on  the  17th 
day  of  August,  1895,  as  acting  surrogate,  for  the  removal  of  Edward 
Sprague  and  Abigail  Journeay,  administrators  of  David  H.  Journeay, 
or  either  of  them,  or  for  the  appointment  of  Mary  L.  Englebrecht  or 
any  other  person,  as  administrators  or  administratrix  in  their  place,  or 
for  the  enforcement  of  said  decree  in  that  behalf  ;  and  that  you,  Mary  L. 
Englebrecht,  desist  and  refrain  from  carr)'ing  into  effect  or  proceeding 
upon  the  said  decree  in  that  behalf  until  further  direction  of  this  court. 

And  that  you  show  cause  on  the  27th  day  of  August,  1895,  ^^  °^ 
after  10  o'clock  in  the  forenoon,  before  a  Special  Term  of  the  Supreme 
Court  at  the  court-house  in  the  city  of  Brooklyn,  county  of  Kings,  why 
you  should  not  be  absolutely  restrained  from  taking  any  proceeding 
under  the  said  decree  as  aforesaid  for  the  removal  of  the  said  Edward 
Sprague  and  Abigail  Journeay,  or  either  of  them,  or  for  the  appoint- 
ment of  Mary  L.  Eglebrecht,  or  any  other  person,  as  administratrix  or 
administrator,  in  their  place,  or  for  the  enforcement  of  the  said  decree 
in  that  behalf. 

Witness :  Hon.  Wm.  J.  Gaynor,  one  of  the  justices  of  the  Supreme 
Court,  at  the  court-house  in  the  county  of  Kings,  on  the  23d  day  of 
August,  1895. 

By  the  court.  JOHN  W.  ELSWORTH, 

Clerk. 


PROHIBITION.  295 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

Form  of  Alternative  Writ  of  Prohibition.     (89  N.  Y.  152.) 

The  People  of  the  State  of  New  York  to  Zerah  S.  Westbrook,  Coimty 
fudge  and  Surrogate  of  Montgomery  County,  in  said  State,  and  to 
Jacob  C.  Nellis,  executor  of  the  last  will  and  testament  of  Peter 
G.  Fox,  deceased,  greeting  : 

Whereas,  Henry  C.  Adams,  of  the  city  of  New  York,  has  presented 
to  the  Supreme  Court  of  the  State  of  New  York,  on  the  21st  day  of 
March,  1886,  the  fact  upon  petition  and  affidavit,  and  the  papers  ac- 
companying the  same  in  printed  form,  that  an  action  was  commenced 
by  him  as  the  plaintiff,  by  service  of  a  summons  and  complaint  upon 
Peter  G.  Fox,  executor  of  the  last  will  and  testament  of  Archibald  Fox, 
deceased,  and  Lawrence  M.  Fox,  defendants,  on  or  about  the  ist  day 
of  August,  1872,  to  recover  of  Peter  G.  Fox,  personally,  the  amount 
due  upon  three  several  judgments,  viz. :  (here  state  facts  as  in  petition) : 
Wherefore  the  said  Henry  C.  Adams  has  prayed  relief  of  our  said 
court,  and  our  writ  of  prohibition  in  that  behalf.  We,  therefore,  being 
willing  that  the  laws  and  customs  of  our  State  should  be  observed,  and 
that  our  citizens  should  in  nowise  be  oppressed,  do  command  you  that 
you  desist  and  refrain  from  any  further  proceeding  in  the  matter  of  ex- 
hibiting, proving,  examining,  deciding  upon  or  intermeddling  in  any 
manner  with  the  said  claims  and  demands  of  the  said  relators,  so  pend- 
ing and  undetermined  in  said  action,  and  awaiting  the  adjudication  and 
decree  of  the  Supreme  Court,  and  that  you  make  no  order,  decree,  or 
adjudication  in  respect  to  the  claims  and  demands  of  other  creditors  of 
said  estate,  inconsistent  with  or  in  any  manner  prejudicial  to  the  rights, 
interests,  claims,  and  demands  of  the  said  relator,  Henry  C.  Adams, 
until  the  final  adjudication,  decree,  or  judgment  of  said  Supreme  Court, 
in  the  said  action  so  pending  therein  as  aforesaid ;  and  then  only  in  the 
manner  and  form,  and  in  accordance  with  the  decree  and  judgment  of 
the  said  Supreme  Court  therein,  or  the  further  order  of  this  court. 

And  also  that  you  desist  and  refrain  from  making  any  distribution 
whatever  of  the  said  funds  of  said  estate,  and  from  publication  of 
notice  of  such  distribution  among  the  creditors  of  said  deceased  until 
the  final  distribution,  decree,  or  judgment  of  said  Supreme  Court,  in 
the  said  action  so  pending  and  undetermined  therein,  as  stated,  and 
then  only  in  the  manner  and  form,  and  in  accordance  with  the  decree 
and  judgment  of  the  said  Supreme  Court  therein,  or  the  further  order 
of  this  court. 

And  that  you  show  cause  on  the  second  Tuesday  of  April,  18S6,  at 
ten  o'clock  a.  m.  of  said  day,  before  the  Special  Term  of  the  Supreme 
Court  of  the  State  of  New  York,  at  chambers  of  Hon.  Joseph  Potter, 
in  Whitehall,  N.  Y.,  why  you  should  not  be  absolutely  restrained  from 
any  further  proceedings  in  respect  to  the  said  claims  and  demands  of 
said  relator,  or  the  claims  and  demands  of  other  creditors  of  said  estate, 
inconsistent  with  or  prejudicial  to  the  said  rights,  claims  and  demands 
of  said  relator ;  and  also  from  making  any  distribution  whatever  of  the 
said  funds  of  said  estate,  and  from  publication  of  notice  of  such  distri- 
bution among  the  creditors  of  said  deceased,  until  the  final  adjudica- 


296  PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 


tion,  decree,  or  judgment  of  the   Supreme  Court,  in  the  said   action  so 
pending  and  undetermined  therein,  as  aforesaid,  or  the  further  order  of 

this  court. 

Witness,  the  Hon.  Joseph  Potter,  one  of  the  justices  of  the   Su- 
[l.  s.]        preme   Court,  at  the  court-house,  in   the   county  of  Warren, 
the  2 1  St  day  of  March,  A.  D.  1886. 
By  the  court.  DANIEL  V.   BROWN, 

Clerk. 
HENRY  C.  ADAMS,  Relator, 

Attorney  in  Person. 
Indorsed  : — "  The  within  writ  of  prohibition  is   hereby  allowed  this 
2 1  St  day  of  March,  1886,  by  the  court. 

"JOS.  POTTER, 

'■'■  Justice  Supreme  Court. ''^ 

Alternative  Writ.     (74  Hun,  130.) 

The  People  of  the  State  of  Nciv  York  to  A.  B.  Flansburgh,  a  justice  of 
the  peace,  etc.,  and  to  Horace  Inman,  greeting: 
Whereas,  Frederick  Hess,  of  the  town  of  Long  Lake,  in  the  county 
of  Hamilton,  State  of  New  York,  did  present  to  the  Supreme  Court  of 
the  State  of  New  York  on  the  24th  day  of  January,  1893,  the  facts  upon 
petition  and  affidavit,  and  the  papers  accompanying  the  same,  that  on 
or  about  the  3d  day  of  November,  1892,  Horace  Inman,  who  resides 
and  then  resided  in  the  city  of  Amsterdam  in  the  county  of  Mont- 
gomery in  said  State,  commenced  an  action  in  the  Supreme  Court  of 
said  State,  as  sole  plaintiff,  against  said  Hess,  as  sole  defendant,  laying 
and  making  the  place  of  trial  in  said  Montgomery  County,  said  action 
having  been  commenced  by  the  personal  service  of  a  summons  upon 
said  defendant  at  his  residence  in  said  town  of  Long  Lake.  That  issue 
was  duly  joined  in  said  action,  and  that  said  cause  was  duly  noticed 
for  trial  and  duly  placed  upon  the  calendar  of  and  for  the  January 
term,  1898,  of  the  Circuit  Court,  held  in  Montgomery  County,  by  both 
said  plaintiff  and  said  defendant. 

That  on  Friday,  January  20th,  1893,  the  said  cause  was  duly  called 
in  its  order  for  trial  at  said  circuit  by  his  honor.  Justice  Stover,  presid- 
ing, and  the  trial  of  the  same  was  duly  moved  by  the  said  defendant 
through  his  attorneys  ;  that  the  said  plaintiff  Inman,  through  his  at- 
torney and  council,  announced  that  he  was  not  ready  for  trial  by  reason 
of  the  fact  of  the  plaintiff's  absence,  and  that  they  could  not  safely  pro- 
ceed to  trial  without  him  and  that  he  was  a  material  witness  in  his  own 
behalf ;  whereupon,  on  motion  of  the  said  defendant  Hess,  the  com- 
plaint in  said  action  was  dismissed  and  an  order  to  that  effect  entered 
in  the  minutes  of  the  clerk  of  said  court ;  but  that  no  further  or  formal 
order,  and  no  judgment,  have  or  has  been  entered  in  said  cause. 

That  immediately  after  the  direction  of  the  court  dismissing  the 
complaint,  and  in  the  actual  and  constructive  presence  of  the  court,  the 
said  Frederick  Hess  was  served  with  a  summons  emanating  from  a 
court   of    the    justice    of    the    peace,  issued  by    A.  B.   Flansburgh,  a 


PROHIBITION.  297 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

justice  of  the  peace,  in  and  for  the  county  of  Montgomery,  N.  Y., 
commanding  the  said  Frederick  Hess  to  appear  before  the  said 
A.  B.  Flansburgh,  as  said  justice,  on  the  27th  day  of  January.  1893,  at 
one  o'clock  in  the  afternoon  of  that  day  at  his  office,  No.  ^;^  East  Main 
Street,  in  the  city  of  Amsterdam,  to  answer  the  complaint  of  the  said 
Horace  Inman  in  an  action  in  which  said  Horace  Inman  was  sole  plain- 
tiff, and  the  said  Frederick  Hess  was  the  sole  defendant,  the  cause  of 
action  being  identically  the  same  as  the  said  action  against  the  said 
Hess  in  the  Supreme  Court  hereinabove  named  and  described,  the  said 
action  in  the  Supreme  Court  being  then  still  pending  and  undeter- 
mined. 

That  said  Frederick  Hess,  the  relator  herein,  residing  as  aforesaid  in 
the  town  of  Long  Lake,  in  the  county  of  Hamilton,  said  State,  and  out- 
side the  jurisdiction  of  the  said  justice  of  the  peace,  and  of  his  said 
court,  attended  and  was  present  at  the  said  term  of  the  Circuit  Court 
solely  as  a  party  and  as  a  witness  in  his  own  behalf,  and  for  no  other 
reason  or  purpose  whatsoever ;  and  that  said  Frederick  Hess  was 
brought  before  the  said  jurisdiction  of  the  said  justice  of  the  peace  by 
and  in  consequence  of  his  attendance  at  the  said  Circuit  Court,  and 
that  the  said  justice  would  have  had  no  jurisdiction  over  the  person  of 
the  said  defendant  Hess  had  he  not  been  brought  within  the  said 
county  of  Montgomery  by  and  through  his  attendance  as  aforesaid  on 
said  Circuit  Court. 

Wherefore,  said  Frederick  Hess  has  prayed  relief  of  our  said  court 
and  our  writ  of  prohibition  in  that  behalf  ; 

We,  therefore,  being  willing  that  the  laws  and  customs  of  our  State 
should  be  observed,  and  that  our  citizens  should  in  nowise  be  op- 
pressed, do  command  you  and  each  of  you  that  you  desist  and  refrain 
from  any  and  all  further  proceedings  in  said  certain  action  commenced 
in  the  court  of  said  justice  of  the  peace  on  the  20th  day  of  January, 
1893,  by  said  Horace  Inman,  as  plaintiff,  against  Frank  Hess,  relator 
herein,  as  defendant,  and  now  pending  in  said  justices'  court  until  the 
further  determination  and  direction  of  this  court ;  and  that  you  and 
each  of  you  show  cause  at  a  Special  Term  of  this  court  on  the  fourth 
Tuesday  of  February,  1893,  at  the  opening  of  court  on  that  day,  at  the 
chambers  of  Hon.  Martin  L.  Stover,  in  the  city  of  Amsterdam,  why 
you  and  each  of  you  should  not  be  absolutely  restrained  from  any 
further  proceedings  in  that  action. 

Witness  :  Hon.  Martin  L.   Stover,  one  of  the  justices  of  the  Su- 
[l.  s.]        preme  Court,  at  the  court-house  in  the  county  of  Montgomery 
on  the  24th  day  of  January,  1893. 

JOHN  F.  COLLINS, 

Indorsed : — '*  The  within  wTit  of  prohibition  is  hereby  allowed  this 
24th  day  of  January,  1893. 

"JOHN  F.  COLLINS, 

^'■Justice  Supreme  Court.''* 


298  TROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

Precedent  for  Affidavit  for  Writ  from  Appellate  Division. 

In  the  Supreme  Court  of  the  State  of  New  York,  ) 

City  and  County  of  New  York,  )  ^^' ' 

Edward  Cooper,  of  said  city,  being  duly  sworn,  says  he  is  mayor  of 
the  city  of  New  York.  That  about  March,  1879,  certain  proceedings 
were  instituted  before  him  for  the  purpose  of  investigating  tlie  official 
conduct  of  Sidney  P.  Nichols  as  commissioner  of  police  of  said  city,  and 
such  proceedings  were  conducted  and  carried  on  according  to  law,  and 
the  said  Nichols  was  given  an  opportunity  to  be  heard  before  him  in  re- 
lation to  said  charges.  The  proceedings  before  said  mayor  appear  in 
a  copy  of  his  return  to  writ  of  certiorari  hereto  annexed.  That  upon 
the  report  of  said  proceedings  to  the  Governor  of  the  State  of  New 
York,  a  writ  of  certiorari  was  directed  to  the  said  Governor  and  mayor, 
for  the  purpose  of  bringing  before  the  Supreme  Court  for  review  the 
proceedings  had  on  such  hearing  of  the  charges  against  said  Nichols. 
That  as  deponent  is  informed  and  believes,  no  assignment  or  appoint- 
ment of  any  Special  Term  to  be  held  in  the  city  of  New  York  has  been 
made  for  the  month  of  September,  1879,  and  that  the  right  of  jurisdic- 
tion and  review  of  the  decision  made  on  said  hearing  as  to  the  removal 
of  said  Nichols  can  only  be  exercised  at  a  regularly  appointed  term, 
and  not  at  chambers.  That  nevertheless  Hon.  T.  R.  Westbrook,  sitting 
at  Special  Term  at  chambers,  did,  on  September  16,  1879,  rna^ke  an 
order,  of  which  a  copy  is  hereto  annexed,  by  which  deponent  is  re- 
quired to  show  cause,  on  the  2 2d  day  of  September  inst.,  before  him, 
the  said  justice,  at  Special  Term,  at  chambers,  why  ihe  so-called  judg- 
ment in  the  matter  of  said  Nichols  should  not  be  reviewed  and  declared 
null  and  void. 

Wherefore  deponent  prays  this  court  that  it  will  exercise  the  jurisdic- 
tion and  authority  conferred  upon  it  by  law,  and  issue  a  writ  of  pro- 
hibition directed  to  the  said  Special  Term,  at  chambers,  so  to  be  held 
on  September  22,  1879,  '^'^^  t*^  '^'^^  Hon.  T.  R.  Westbrook,  the  pre- 
siding justice  thereat,  and  to  said  Sidney  P.  Nichols,  prohibiting  the 
said  Special  Term  at  chambers  and  the  said  justice  from  further  enter- 
taining or  proceeding  with  the  matter  of  said  writ  of  certiorari,  or  the 
return  thereto,  or  the  matter  set  forth  in  said  order  of  September  16, 
and  prohibiting  and  restraining  the  said  Nichols  from  bringing  into 
effect  or  proceeding  upon  any  judgment  which  may  be  rendered  at  said 
term  at  chambers,  and  for  such  other  or  further  relief  as  may  be  just. 

EDWARD  COOPER. 
Sworn  to  before  me,  this  19th   ) 

day  of  September,  1879.        \ 

JOHN   TRACY, 

Notary  Public, 


PROHIBITION.  299 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

Precedent  for  Order  for  Alternative  Writ  by  Appellate  Division. 

At  a  term  of  the  Appellate  Division  of  the  Supreme  Court,  appointed  by 
the  Governor  of  the  State  of  New  York,  held  in  and  for  the  first  de- 
partment, at  the  court-house,  in  the  city  and  county  of  New  York, 
on  the  20th  day  of  September,  1879  : 

Present : — Hon.  Noah  Davis,  Presiding  Justice ;  John  R.  Brady  and 
George  C.  Barrett,  Justices. 


The  People  of  the  State  of  New  York,  on  the 
relation  of  Edward  Cooper,  Mayor  of  the  City 
of  New  York, 


.79  N.  Y.  582. 


agst. 

The  Special  Term  at  Chambers,  now  being  held 
in  and  for  the  City  and  County  of  New  York, 
in  the  court-house  in  the  City  and  County  of 
New  York,  and  against  the  Hon.  Theodoric  R. 
Westbrook,  the  Justice  presiding  at  said 
Special  Term,  and  against  Sidney  P.  Nichols, 
the  relator  in  certain  proceedings  pending  in 
said  Special  Term  at  Chambers. 

On  reading  and  filing  the  affidavit  of  Edward  Cooper,  and  the  papers 
and  proceedings  thereto  annexed,  and  the  affidavit  of  William  C. 
Whitney,  and  upon  motion  of  Francis  N.  Bangs  and  Francis  C. 
Barlow,  of  counsel  for  the  said  Edward  Cooper,  such  mayor  as  afore- 
said, 

It  is  ordered  by  the  court  now  here  that  the  said  respondents,  the 
said  Special  Term  at  chambers,  the  Hon.  Theodoric  R.  Westbrook, 
justice  presiding  thereat,  and  Sidney  P.  Nichols,  do  show  cause  before 
this  court  on  Thursday,  the  25th  day  of  September,  instant,  at  the  court- 
house in  the  city  and  county  of  New  York,  at  half-past  ten  o'clock,  or 
as  soon  thereafter  as  counsel  can  be  heard,  why  a  writ  of  prohibition 
should  not  be  issued  by  this  court,  under  and  pursuant  to  the  statute, 
and  according  to  the  course  and  practice  of  the  court,  prohibiting  and 
restraining  the  said  Special  Term,  and  the  said  justice,  or  any  justice 
presiding  thereat,  from  hearing  and  determining  the  questions  arising 
upon  the  writ  of  certiorari  mentioned  in  the  said  affidavit  of  Edward 
Cooper,  and  upon  the  certificate  of  the  said  Edward  Cooper,  filed  as  the 
return  to  said  writ  of  certiorari,  and  from  receiving,  affirming,  or  revers- 
ing the  proceedings  of  the  said  Edward  Cooper,  as  mayor,  therein  men- 
tioned, and  from  rendering  any  judgment  thereon,  and  making  any 
further  order  in  respect  thereto,  and  prohibiting  and  restraining  the  said 
Sidney  P.  Nichols  from  applying  to  said  Special  Term,  for  any  hear- 
ing, or  determination,  or  judgment  on  the  said  writ  of  certiorari  and 
return  thereto,  and  from  carr^'ing  into  execution  or  effect  any  such  judg- 
ment, order,  or  determination.  And  it  is  further  ordered  that  the  said 
Special  Term,  and  the  said  justice  presiding  thereat,  and  the  said  Sid- 
ney P.  Nichols,  be  and  they  are  each  of  them  prohibited  and  restricted 


3CX)  PROHIBITION. 


Art.  3.     The  Alternative  Writ  and  Proceedings  Thereon. 

from  any  and  all  further  proceedings  in  the  matter  of  said  certiorari,  and 
from  bringing  the  same  to  a  hearing  and  trial,  and  from  trying,  decid- 
ing, or  adjudicating  the  same  in  any  manner  or  form,  until  the  hearing 
before  the  General  Term,  under  this  order,  and  the  decision  of  said 
General  Term,  upon  such  order,  except  that  this  order  shall  not  operate 
to  restrain  or  prevent  either  party  from  noticing  or  bringing  to  hearing 
before  the  General  Term  any  appeal  or  appeals  now  pending  from 
orders  heretofore  made  in  the  said  proceedings,  or  from  noticing  and 
putting  the  said  proceeding  on  the  calendar  of  the  October  Special 
Term,  for  the  hearing  and  trial  of  issues  of  law  or  fact  (of  which  short 
notice  shall  be  sufficient)  so  that  the  same  may  be  brought  to  a  trial  of 
hearing  without  delay,  after  the  decision  of  this  court  upon  this  order, 
nor  shall  it  operate  to  prevent  the  said  Special  Term  at  chambers  from 
adjourning  the  motions  now  pending  in  said  proceeding,  from  time  to 
time,  until  the  hearing  and  decision  under  this  order. 

HUBERT  O.  THOMPSON, 

Clerk. 

Precedent  for  Form  of  Alternative  Writ  of  Prohibition  by- 
Appellate  Division. 

The  People  of  the  State  of  New  York  ex  rel.  Edward  Cooper,  Mayor  of 
the  City  of  New  York,  to  the  Special  Term  at  Charnbers,  now  being 
held  in  and  for  the  City  and  County  of  Ne7v  York,  in  the  Court-IIouse 
in  said  city,  and  Hon.  Theodoric  R.  VVestbrook,/^^/'/^^,  presiding  at 
said  Terfn  at  Chambe?-s,  and  Sidney  P.  Nichols  : 

Whereas,  Edward  Cooper,  lately  in  our  Supreme  Court,  at  a  Gen- 
eral Term  thereof,  held  at  the  court-house  in  the  city  of  New  York  on 
the  20th  day  of  September,  1879,  gave  ^^e  court  to  understand,  and  be 
informed  (here  state  facts  briefly  set  out  in  affidavit  or  petition),  as 
appears  by  the  affidavits  of  William  C.  Whitney  and  Edward  Cooper, 
verified  September  20,  1879  5  ^"^ 

Whereas,  It  appears  by  such  affidavit  that  you,  the  said  court  at 
Special  Term,  you,  the  Hon,  Theodoric  R.  Westbrook,  the  presiding 
justice  thereof,  are  proceeding  unjustly  to  aggrieve  and  oppress  the 
relator,  contrary  to  law  and  without  jurisdiction,  and  that  adequate  and 
proper  relief  can  only  be  had  by  the  said  Edward  Cooper,  mayor 
of  the  city  of  New  York,  by  writ  of  prohibition  restraining  you  and  each 
of  you  from  taking  further  proceedings  in  reference  to  the  matters  here- 
inbefore set  forth,  which  relief  is  asked  by  the  said  relator : 

We,  therefore,  do  command  you,  the  said  Special  Term,  sitting  at 
chambers,  and  you,  the  said  presiding  justice  thereof,  and  you,  Sidney 
P.  Nichols,  a  party  to  the  proceedings  there  sought  to  be  had,  to  desist 
and  refrain  (here  follow  language  of  order)  until  the  further  order  of 
this  court  thereon,  and  that  you  show  cause  before  this  court  on  Thurs- 
day, the  25th  day  of  September  next,  at  the  court-house  in  the  city  and 
county  of  New  York,  why  absolute  writ  of  prohibition  should  not  issue 
against  you,  and  have  you  then  and  there  this  writ. 


PROHIBITION.  301 


Art.  4.     Proceedings  on  Return. 


Witness,  Hon.  Noah  Davis,  presiding  justice    at  said  General 
Term,  at  the  court-house  in  the  city  of  New  York,  this  20th 
^■^•i  day  of  September,  1879.       HUBERT  O  THOMPSON, 

FRANCIS  N.   BANGS,  C/erl-. 

Attorney  for  Relator. 
Indorsed  : — "  Allowed  by   special  order  of  the  court  September  20, 
1879.  NOAH   DAVIS, 

"^Presiding  /ustice.'' 

A  writ  was  held  to  be  irregularly  granted  under  the  former 
practice,  where  the  order  to  show  cause  was  not  served  on  the 
courts  to  which  it  was  directed,  and  no  appearance  was  made  on 
their  behalf.     Matter  of  Cameron,  5  Hun,  290. 

It  will  be  remembered  that  it  was  held  in  proceedings  by 
mandamus  that  an  order  to  show  cause  took  the  place  of  and 
was  equivalent  to  an  alternative  writ  in  the  first  instance. 

Section  2095  provides  that  the  writ  of  prohibition  shall  be 
served  on  the  court  or  judge  or  party,  as  service  is  prescribed  for 
the  alternative  writ  of  mandamus  in  §  2071  Code  Civil  Proced- 
ure. Decisions  under  the  section  last  named  as  to  service  would 
doubtless  be  appliable  to  the  writ  of  prohibition. 

While  §  2094  provides  that  "  Except  as  otherwise  specially 
prescribed  by  law,  an  absolute  writ  of  prohibition  cannot  be 
issued  until  an  alternative  writ  has  been  issued  and  duly  served 
and  the  return  day  thereof  has  elapsed,"  yet  it  has  been  held 
that  where  there  has  been  a  hearing  upon  the  merits  upon  an 
order  to  show  cause  why  a  writ  of  prohibition  should  not  issue, 
that  such  order  to  show  cause  answers  the  purpose  of  an  alter- 
native writ  issued  in  the  first  instance,  and  the  granting  of  the 
peremptory  writ  is  proper  where  upon  such  hearing  only  ques- 
tions of  law  are  involved.  The  court  says,  "  No  object  could 
have  served  by  issuing  an  alternative  writ,  as  it  appeared  that 
only  a  question  of  law  was  involved,  and  a  short  cut  was  adopted 
to  accomplish  a  just  result."  People  ex  rel.  Toy  v.  Mayer,  71 
Hun,  182,  53  St.  Rep.  862,  24  Supp.  621. 

ARTICLE  IV. 

Proceedings  on  Return.    §§  2096,  2098,  2099. 

§  2096.  [Am'd,  1895.]  Absolute  writ  issues,  unless  return 
made. 

Where  the  alternative  writ  has  been  duly  served  upon  the  court  or  judge,  and  upon 
the  party,  the  relator  is  entitled  to  an  absolute  writ,  unless  a  return  is  made  by  the 


202  PROHIBITION. 


Art.  4.     Proceedings  on  Return. 


court  or  judge,  and  by  the  party,  according  to  the  exigency  of  the  alternative  writ, 
or  within  such  further  time  as  may  be  granted  for  the  purpose.  The  return  must  be 
annexed  to  a  copy  of  the  writ ;  and  it  must  be  either  delivered  in  open  court,  or  filed 
in  the  office  of  the  clerk  of  the  county  where  the  writ  is  returnable.  Where 
the  party  makes  a  return,  the  court  or  judge  must  also  make  a  return.  In  default 
thereof,  the  judge,  or  the  members  of  the  court,  may  be  punished,  upon  the  appli- 
cation of  the  people  or  of  the  relator,  for  a  contempt  of  the  court  issuing  the  writ. 
A  return  to  an  alternative  writ  of  prohibition  cannot  be  compelled  in  any  other 
case. 

L.  1895,  ch.  946- 

§  2098.    Return  by  party ;  proceedings  when  he  adopts  judge's 

return. 

A  return  to  an  alternative  writ,  when  made  by  a  party,  must  be  verified  by  his 
affidavit,  as  required  for  the  verification  of  a  pleading  in  a  court  of  record ;  unless  it 
consists  only  of  objections  to  the  legal  sufficiency  of  the  papers  upon  which  the  writ 
was  granted.  Where  the  party  unites  with  the  court  or  judge  in  a  return,  or  annexes 
to  the  court's  or  the  judge's  return,  an  instrument  in  writing,  subscribed  by  him,  to 
the  effect  that  he  adopts  it,  and  relies  upon  the  maters  therein  contained,  as  sufficient 
cause  why  the  court  or  judge  should  not  be  restrained,  as  mentioned  in  the  writ,  he  is 
thenceforth  deemed  the  sole  defendant  in  the  special  proceeding ;  except  that  where 
a  final  order  is  made,  awarding  an  absolute  writ  of  prohibition,  such  a  writ  must  be 
directed  to  the  party,  and  also  to  the  court  or  the  judge. 

§  63,  R.  S.,  am'd.     See  §  2083. 

§2099.    [Am'd,  1895.]    Proceedings  after  return ;  trial  by  jury. 

Pleadings  are  not  allowed  upon  a  writ  of  prohibition.  Where  an  alternative  writ 
has  been  issued,  the  cause  may  be  disposed  of  without  further  notice,  at  the  term  at 
which  the  writ  is  returnable.  If  it  is  not  then  disposed  of,  it  may  be  brought  to  a 
hearing,  upon  notice,  at  a  subsequent  term.  It  must  be  heard  at  a  term  of  the 
appellate  division  in  the  same  judicial  department,  or  at  a  Special  Term  held 
in  the  same  judicial  district,  as  the  case  may  be.  The  relator  may  controvert, 
by  affidavit,  any  allegation  of  new  matter  contained  in  the  return.  The  court 
may  direct  the  trial  of  any  question  of  fact  by  a  jury,  in  like  manner  and  with 
like  effect,  as  where  an  order  is  made  for  the  trial,  by  a  jury,  of  issues  of  fact,  joined 
in  an  acrion  triable  by  the  court.  Where  such  a  direction  is  given,  the  proceedings 
must  be  the  same,  as  upon  the  trial  of  issues  so  joined  in  an  action. 

The  peremptory  writ  follows  the  general  form  of  the  alter- 
native writ,  except  in  final  direction  to  show  cause. 

An  order  for  an  absolute  writ  of  prohibition  to  an  inferior 
court  was  reversed  where  the  return  showed  that  an  order  to 
show  cause  had  been  granted  on  affidavits,  but  did  not  show  that 
there  was  any  service  on  the  courts  and  that  they  made  no  re- 
turn and  that  there  was  no  appearance  for  them.  In  re  Cameron, 
5  Hun,  290. 

The  writ  of  prohibition,  like  the  writ  of  mandamus  when 
issued  from  the  appellate  division  to  a  Special  Term  or  judge  of 
the  same  court,  may,  in  the  discretion  of  the  court,  or  where  an 


PROHIBITION,  305 


Art,  4.     Proceedings  on  Return. 


appeal  is  taken  therein  to  the  Court  of  Appeals  in  the  discretion 
of  that  court,  be  preferred  over  any  of  the  causes  specified  in 
§  791  of  the  Code,     (See  Code  Civil  Procedure,  §  792,) 

Precedent  for  Return  to  Alternative  Writ  by  the  Court  Below. 

(Title  as  above.) 

To  the  Hotiorable  the  Supreme  Court  of  the  State  of  New  York  : 

I,  Zerah  S.  Westbrook,  surrogate  of  the  county  of  Montgomery,  de- 
fendant herein,  in  answer  to  the  writ  of  prohibition  granted  herein, 
March  21,  1881,  a  copy  of  which  was  served  on  me,  and  is  hereto 
annexed,  and  for  a  return  thereto,  do  hereby  certify  and  return  as  by 
law  required,  as  follows  : 

(Here  insert  facts.) 

Therefore  this  defendant  respectfully  denies  the  right  or  jurisdiction 
of  your  honorable  court  to  grant  said  writ  or  to  continue  the  same,  or 
in  any  way  or  manner  interfere  with  or  control  the  matters  legally 
pending  before  him  as  surrogate,  as  aforesaid,  and  he  respectfully 
denies  the  sufficiency  of  the  papers  and  proofs  on  which  the  same  was 
granted,  and  asserts  that  said  writ  was  and  is  wholly  unauthorized,  use- 
less and  unnecessary. 

All  of  which  is  respectfully  submitted  that  your  honorable  court  may 
consider  and  do  as  it  may  seem  proper  and  just  in  the  premises. 

In  witness  whereof,  I   have  hereunto  set   my  hand  and  official 
[l,  s,]        seal  this  6th  day  of  April,   1886,  at  Amsterdam,  in  the  county 
of  Montgomery.  Z.   S,  WESTBROOK, 

Surrogate. 

Return  by  Party  to  Alternative  Writ. 

(Title  as  above.) 

The  return  of  Jacob  C.  Nellis,  to  the  writ  of  prohibition  granted 
herein,  a  copy  of  which  is  hereto  annexed,  denies  all  and  all  manner  of 
injury  or  grievance  in  said  writ  alleged,  and  certifies  and  returns  to  the 
Supreme  Court  (here  state  facts,  or  adopt  return  of  court  or  judge  if 
facts  are  stated  therein). 

Therefore,  this  defendant  relies  upon  the  matters  hereinbefore  set 
forth  and  in  the  return  to  said  writ  by  the  surrogate  of  Montgomery 
County  as  sufficient  cause  why  the  said  surrogate's  court  should  not  be 
restrained  as  mentioned  in  said  writ. 

Witness  my  hand  this  nth  day  of  April,  1881, 

JACOB  C.  NELLIS, 
Executor,  etc.,  of  Peter  G.  Fox,  deceased. 
Add  verification.^ 


304 


PROHIBITION. 


Art.  4.     Proceedings  on  Return. 


Return  by  Justice  of  the  Peace. 

SUPREME  COURT. 


1 


People  ex  rel.  Frederick  Hess, 

agst. 

A.  B.  Flansburgh,  a  justice   of  the   peace,  etc., 
and  Horace  Inman. 


►  74  Hun,  130. 


To  the  Honorable  the  Supreme  Court  of  the  State  of  New  York  : 

I,  A.  B.  Flansburgh,  a  justice  of  the  peace,  defendant  herein,  in 
answer  to  the  writ  of  prohibition  granted  herein,  January  24th,  1893,  a 
copy  of  which  was  served  upon  me  and  is  hereto  annexed,  and  for  a 
return  thereto,  do  hereby  serve  and  as  by  law  required,  as  follows : 

On  the  20th  day  of  January,  1893,  H.  B.  Waldron,  of  the  City  of 
Amsterdam,  called  at  my  office  and  requested  me  to  issue  a  summons  in 
an  action  wherein  Horace  Inman  was  the  plaintiff  and  Frederick  Hess 
was  defendant.  I  thereupon  did  issue  a  summons,  a  copy  of  which  is 
annexed  to  the  petition  of  Frederick  A.  Hess  herein,  and  delivered  said 
summons  and  a  copy  thereof  to  said  H.  B.  Waldron. 

That  this  defendant  heard  nothing  further  from  said  summons,  ex- 
cept that  the  summons  was  returned  served,  until  the  25th  day  of  Jan- 
uary, 1893,  when  the  writ  of  prohibition  was  served  upon  him.  That 
he  has  no  knowledge  or  information  of  the  matters  set  fortii  in  the 
petition  and  affidavits  on  which  the  writ  was  granted.  That  at  the 
time  said  summons  was  issued  this  defendant  was  not  aware  that 
Frederick  Hess  was  not  a  resident  of  Montgomery  County  and  did  not 
know  that  he  was  in  Montgomery  County  attending  court.  That  said 
Frederick  Hess  was  not  exempt  from  the  service  of  the  summons  upon 
him,  and  that  this  defendant  as  such  justice  of  the  peace  had  jurisdic- 
tion of  the  subject-matter  of  said  action  and  of  the  said  Frederick  Hess 
upon  the  service  of  the  summons  upon  him.  That  the  fact  that  the 
said  Frederick  Hess  was  in  Montgomery  County  for  the  sole  purpose  of 
attending  court,  wherein  he  was  a  party  and  a  witness,  did  not  exempt 
him  from  the  service  of  a  summons  upon  him. 

Therefore,  this  defendant  denies  the  right  or  jurisdiction  of  your  honor- 
able court  to  grant  said  writ  and  to  continue  the  same,  or  in  any  way  or 
manner  interfere  with  or  control  the  matter  legally  pending  before  him  as 
justice  of  the  peace  as  aforesaid,  and  he  respectfully  denies  the  sufficiency 
of  the  papers  and  proof  on  which  the  same  is  granted,  and  asserts  that  the 
said  writ  was  and  is  wholly  injurious,  useless  and  unnecessary,  and  that 
the  relator's  remedy  was  by  motion  to  set  aside  service  of  the  summons. 

All  of  which  is  respectfully  submitted  that  your  honorable  court  may 
consider  and  do  as  it  may  deem  proper  and  just  in  the  premises. 

In  witness  whereof  I  have  hereunto  set  my  hand  this  day  of  Feb- 
ruary, 1893,  at  Amsterdam,  in  the  county  of  Montgomery. 

A.  B.   FLANSBURGH, 

Justice  of  the  Peace. 


PROHIBITION.  305 


Art.  4.     Proceedings  on  Return. 


Return  to  Writ  of  Prohibition  by  Board  of  Supervisors. 

SUPREME  COURT. 


I'eople  ex  rcl.  towns  of  Blenheim,  Gilboa,  etc., 
and  of  Alonzo  Parslow,  a  taxpayer  and 
supervisor  of  the  town  of  Blenheim. 


i-121   N.  Y.  345. 


agst. 

The    Board  of   Supervisors   of   the    County   of 
Schoharie. 


To  the  Honorable  the  Suprcfiie  Court  of  the  State  of  New  York  : 

The  Board  of  Supervisors  of  the  county  of  Schoharie,  defendant 
herein,  by  Menzo  Young,  the  chairman  of  said  board,  and  by  virtue  of 
a  resolution  of  said  board  authorizing  him  to  do  so,  in  answer  to  the 
writ  of  prohibition  granted  herein  on  the  30th  day  of  November,  1887, 
a  copy  of  which  was  served  upon  said  board,  by  service  thereof  on  said 
chairman,  on  the  first  day  of  December,  1887,  and  is  hereto  annexed, 
and  for  a  return  thereto  for  said  board,  under  a  resolution  thereof 
directing  him  so  to  do,  hereby  certifies  and  returns  as  by  law  required 
as  follows,  to  wit : 

That  ever  since  the  first  day  of  January,  1882,  the  indigent  insane 
and  the  pauper  insane  from  and  residing  in  and  having  a  legal  settle- 
ment in  the  different  towns  of  the  county  of  Schoharie,  as  well  as  said 
insane  from  the  county  of  Schoharie,  and  for  many  years  prior  thereto, 
have  been  duly  supported  and  maintained  by  and  at  the  expense  of  the 
said  county  of  Schoharie,  in  the  State  of  New  York,  in  the  New  York 
State  Lunatic  Asylum  at  Utica,  the  Willard  Asylum  at  Ovid,  and  the 
Binghamton  Asylum  at  Binghamton  in  the  following  manner,  to  wit : 

The  said  Board  of  Supervisors  at  their  annual  session  in  each  year 
received  from  the  officers  of  each  of  said  asylums  an  estimate  of  the 
probable  expense  of  clothing  and  maintaining  all  of  the  insane  patients 
from  said  county  and  towns  therein  in  each  of  said  asylums,  respect- 
ively, for  the  ensuing  year  ;  the  said  board  annually  levy  or  raise  in 
each  year  the  amount  of  each  of  the  said  estimates  by  levying  the  same 
upon  and  collecting  the  same  out  of  the  taxable  property  of  said  county, 
and  causing  the  same  to  be  paid  into  the  county  treasurer  of  said 
county,  and  which  said  sums  levied  and  collected  and  paid  as  afore- 
said where  such  sums  as  would  probably  cover  the  estimate  of 
each  of  the  said  asylums  for  the  expense  of  clothing  and  maintaining 
said  patients  therein  and  in  each  one  thereof  for  one  year  in  advance. 

That  out  of  such  moneys  so  raised  and  paid  into  the  county  treasurer, 
said  county  paid  each  year  to  the  treasurer  of  each  of  said  asylums, 
the  bills  for  such  clothing  and  maintenance  as  they  became  due  and 
payable  according  to  the  by-laws  of  each  of  said  asylums  upon  the  order 
of  the  steward  of  each  one  thereof.  That  each  of  the  said  bills  so  paid 
by  the  county  treasurer,  as  aforesaid,  contained  an  itemized  statement 
of  the  expense  for  clothing  and  maintenance  of  each  of  said  patients  in 


3o6  PROHIBITION. 


Art.   4.     Proceedings  on  Return. 


each  of  said  asylums  respectively.  That  if  said  probable  amounts  so 
raised  by  said  county  and  paid  into  the  county  treasurer  thereof  were 
insufficient  to  pay  said  bills  upon  the  orders  of  said  stewards  as  afore- 
said, such  discrepancy  was  paid  by  the  county  treasurer  out  of  and  from 
the  contingent  fund  and  from  moneys  in  his  hands  belonging  to  said 
county ;  and  if  more  than  sufficient  for  such  purposes  such  excess  re- 
mained in  and  became  part  of  the  contingent  funds  in  his  hands,  be- 
longing to  said  county. 

That  at  the  annual  session  of  said  board  in  each  year,  said  county 
treasurer  presented  his  report  to  said  board,  containing  a  statement  of 
all  moneys  received  and  paid  out  by  him  for  the  year,  including  the 
amount  of  money  so  paid  out  by  him  upon  the  orders  of  the  stewards 
of  such  asylums  as  aforesaid,  and  said  report  of  said  county  treasurer 
was  each  year  received  and  filed  by  said  board,  and  the  account  of  all 
moneys  so  received  and  paid  out  by  him  was  duly  passed  by  said  board. 

That  in  no  other  way  or  manner,  or  by  any  other  acts,  resolutions,  or 
directions  of  said  board  has  said  board  authorized  the  payment  of  said 
clothing  and  maintenance  of  said  insane  by  said  county. 

That  as  said  board  is  informed  and  believes  true,  such  payment  by 
said  county  in  no  way  or  manner  was  the  same  as  county  charges  so  as 
to  preclude  said  board  from  charging  the  same  upon  the  towns  in  said 
county  legally  liable  therefor  and  chargeable  therewith. 

That  during  all  the  period  aforesaid  the  distinction  between  town  and 
county  poor  has  existed  in  the  county  of  Schoharie,  and  still  does 
exist,  and  each  town  is,  and  during  all  the  period  aforesaid  has  been, 
liable  for  the  support  of  all  its  own  poor.  That  during  the  period  of 
time  since  January  ist,  1882,  different  towns  in  the  county  of  Schoharie, 
and  particularly  the  town  mentioned  in  the  title  of  said  writ,  have  duly 
had  indigent  and  pauper  insane  clothed  and  maintained  in  some  one  or 
all  of  the  asylums  who  were  residents  of  said  towns,  and  had  a  legal 
settlement  therein,  who  were  duly  and  legally  sent  to  said  asylums  and 
received  therein  upon  an  order  of  some  court  or  officer,  for  which  said 
town  was  and  is  chargable,  and  the  expense  for  the  clothing  and  mainte- 
nance of  which  in  said  asylums  has  been  defrayed  and  paid  by  the  county 
of  Schoharie  as  aforesaid ;  but  the  towns  therein  did  not  have  the  same 
number  of  such  insane  in  said  asylums,  nor  for  the  same  length  of 
time,  nor  at  the  same  expense  for  clothing  and  maintenance. 

That  none  of  the  towns  in  said  county  has  in  any  way  or  manner 
paid  any  of  the  expense  of  clothing  or  maintaining  any  lunatic  in  any  of 
the  said  asylums  from  any  town,  save  as  the  same  has  been  paid  by  the 
county  of  Schoharie  as  herein  before  stated. 

That  at  the  annual  session  of  said  board  on  the  26th  day  of  Novem- 
ber, 1887,  the  said  board  duly  passed  and  adopted  a  preamble  and  res- 
olution, of  which  the  following  is  a  copy  :  (insert  resolution  to  the  ef- 
fect that  each  town  must  be  liable  for  the  support  of  its  poor,  etc.) 

Upon  information  and  belief  said  board  of  supervisors  further  return 
that  they  had  a  legal  right  to  pass  said  resolution  ;  that  it  was  not  in 
excess  of  their  power,  and  that  the  same  properly  carried  out  would 
lawfully  and  justly  charge  the  payment  of  the  expense  of  clothing  and 


PROHIBITION.  307 


Art.  5.     The  Absolute  Writ.     When  Granted. 


maintenance  upon  the  towns  legally  liable  therefor  and  chargeable 
therewith ;  and  that  said  action  under  said  resolution  would  charge 
every  and  any  of  the  towns  named  in  the  title  of  said  writ  with  the 
amounts  named  in  the  affidavit  of  the  relator,  or  with  any  other  amount, 
the  same  would  be  a  just  and  lawful  charge  against  said  town  or  towns. 

And  said  board  further  return  that  they  were  proceeding  to  carry  out 
said  resolution  according  to  its  terms,  at  the  time  said  writ  was  served 
upon  its  chairman  as  aforesaid,  and  upon  the  same  being  served  as 
aforesaid,  the  said  board  immediately  obeyed  said  writ,  and  refrained 
from  further  action  under  said  resolution,  although  said  writ  was  not 
directed  to  said  board,  or  to  any  member  thereof,  and  which  legal  ob- 
jection the  said  board  does  not  waive,  but  which  said  objection  is  now 
taken  hereby  to  said  writ. 

Therefore  said  board  of  supervisors  respectfully  denies  the  right, 
jurisdiction,  or  authority  of  your  honorable  court  to  grant  said  writ,  or 
to  continue  the  same,  or  in  any  way  or  manner  interfere  with  the  con- 
trol of  matters  legally  pending  before  said  board  as  aforesaid  ;  and  said 
board  respectfully  denies  the  sufficiency  of  the  papers  and  process  upon 
which  the  same  was  granted,  and  the  legal  right  of  the  person  making 
the  affidavit  for  said  writ  to  make  the  same,  or  to  become  the  relator 
therein  either  for  himself  or  for  the  town  of  Blenheim,  or  for  either  or 
any  or  all  of  the  other  towns  named  in  the  title  of  said  writ,  and  as- 
serts that  said  writ  is  and  was  wholly  unauthorized,  useless,  and 
unnecessary.  All  of  which  is  respectfully  returned  and  submitted,  that 
your  honorable  court  may  consider  it  and  do  as  it  may  deem  proper 
and  just  in  the  premises. 

In   witness  whereof  I   have  hereunto    subscribed  the  name   of  the 

board  of  supervisors  of  the  county  of  Schoharie,  by  myself  as  chairman 

thereon,  under  a  resolution  of   said  board  authorizing  me  to  do  so  this 

loth  day  of   December,  1887,  at  Schoharie,  in  the  county  of  Schoharie. 

(Signed)  THE   BOARD  OF  SUPERVISORS  OF  THE 

COUNTY  OF  SCHOHARIE. 

By  MENZO  YOUNG, 

{Add  verification^  Chairman  of  said  Board. 


ARTICLE.  V. 

The  Absolute  Writ.    When  Granted.    §§  2096  in  part, 

2100. 

§  2096.  Absolute  writ  issues,  unless  return  made. 

Where  the  alternative  writ  has  been  duly  served  upon  the  court,  or  judge,  and  upon 
the  party,  the  relator  is  entitled  to  an  absolute  writ,  unless  a  return  is  made  by  the 
court  or  judge,  and  by  the  party  according  to  the  exigency  of  the  alternative  writ,  or 
within  such  further  time  as  may  be  granted  for  the  purpose.     .     .     . 

§  2100.  Pinal  order;  costs. 

Where  a  final  order  is  made  in  favor  of  the  relator,  it  must  award  an  absolute  writ 
ofpr  ohibition ;  and  it  may  also  direct  that  all  proceedings  or  any  specified  proceeding, 


308  PROHIBITION. 


Art.   5.     The  Absolute  Writ.     When  Granted. 


theretofore  taken  in  the  action,  special  proceeding,  or  matter,  as  to  which  the  prohibi- 
tion absolute  issues,  be  vacated  and  annulled.  The  writ  of  consultation  is  abolished. 
Where  a  final  order  is  made  against  the  relator,  it  must  authorize  the  court  or  judge, 
and  the  adverse  party,  to  proceed  in  the  action,  special  proceeding,  or  matter,  as  if  the 
alternative  writ  had  not  been  issued.  Costs,  not  exceeding  fifty  dollars  and  disburse- 
ments, may  be  awarded  to  either  party,  as  upon  a  motion. 

The  provision  as  to  amending  or  vacating  proceedings  had, 
applies  only  to  interlocutory  and  mesne  proceedings  prior  to  the 
final  proceedings.  People  ex  re/.  Coviuiissioners  of  Excise^  61 
How.  514,  I  Civ.  Pro.  244. 

Precedent  for  Final  Order  for  Writ. 

At  an  extraordinary  General  Term  of  the  Supreme  Court,  held  at  the 
court-house  in  the  city  of  New  York,  on  the  29th  day  of  Septem- 
ber, 1879  • 

Present  : — Hon.  Noah  Davis,  Presiding  Justice  ;  Hon.  John  R.  Brady 
and  Hon.  George  C.    Barrett,  Justices. 

The   People  ex  rel.  The  Mayor  of  New  Yorlt, 

agst.  \  79  N.  Y.  582. 

Sidney  P.  Nichols  and  others. 


The  order  to  show  cause,  made  in  this  matter  on  the  20th  day  of 
September,  1879,  having  come  on  to  be  heard  before  the  said  justices 
now  present,  at  an  extraordinary  General  Term,  held  at  the  court- 
house aforesaid,  on  the  25th  day  of  September,  1879,  upon  the  papers 
on  which  the  same  was  granted,  and  Mr.  Thomas  G.  Evans  having 
appeared  for  Mr.  Justice  Westbrook,  and  shown  cause  by  reading 
and  filing  a  statement  of  facts  made  by  Mr.  Justice  Westbrook  ;  and 
Messrs.  Townsend  and  Weed  having  appeared  for  Sidney  P.  Nichols, 
and  shown  cause  by  reading  and  filing  the  affidavit  of  John  W.  Weed  ; 
and  Mr.  Francis  N.  Bangs  having  been  heard  for  the  mayor  of  the 
city  of  New  York ;  and  Mr.  Willian  Allen  Butler  for  Sidney  P. 
Nichols,  and  due  deliberation  having  been  thereupon  had  : 

It  is  ordered,  that  there  do  issue  out  of  this  court,  and  under  the 
seal  thereof,  a  writ  of  prohibition  in  the  usual  form,  addressed  to 
the  said  Sidney  P.  Nichols,  and  to  the  Special  Term  and  terms  ap- 
]iointed  to  be  held  at  the  court-house  in  the  city  and  county  of  New 
York,  for  non-enumerated  motions  and  chamber  business,  and  the 
justice  and  justices  presiding  thereat,  restraining  ami  prohibiting  the 
said  Special  Term  and  the  said  justice  and  justices  from  proceeding 
to  entertain  or  determine  any  motion  or  application  for  any  judg- 
ment or  order  reversing,  setting  aside,  or  in  any  manner  affecting 
any  of  the  proceedings  of  the  mayor  of  the  city  of  New  York,  in  or 
upon  or  toward  the  removal  of  said  Sidney  P.  Nichols  from  the  ofifice 
of  commissioner  of  police  of  the  police  department  of  the  city  of 
New  York,  upon  or  in  pursuance  of  the  writ  of  cer/Zo/v//-/ heretofore 


PROHIBITION. 


309 


Art.  5.     The  Absolute  Writ.     When  Granted. 


issued  out  of  this  court  to  said  mayor,  and  the  return  thereto,  or 
either  of  them,  and  prohibiting  and  restraining  the  said  Sidney  P. 
Nichols  from  moving  at  or  applying  to  any  such  Special  Term,  at 
chambers,  for  any  such  judgment  or  order  of  reversal,  or  of  any 
other  judgment  or  order  upon  said  writ  and  certiorari,  or  either  of 
them. 

[l.  s.]  HUBERT  O.  THOMPSON, 

Clerk. 

Precedent  for  Form  of  Order  Denying  Writ. 

(89N.  Y.  152.) 

At  a  Special  Term  of  the  Supreme  Court,    held  at  the   chambers  of 
Hon.  Joseph  Potter,  in  Whitehall,  on  the  iSthday  of  April,  1886  : 
Present — Hon,  Joseph  Potter,  Justice. 


The  People  ex  ret.  Henry  C.  Adams, 
agst. 

Zerah  S.  Westbrook,  Surrogate,  etc.,  and  Jacob 
C.  Nellis,  Executor  of,  etc.,  of  Peter  G.  Fox, 
deceased. 

The  defendants  having  by  their  counsel  appeared  when  the  writ 
of  prohibition  was  returnable,  and  filed  their  separate  return  thereto, 
and  the  relator  having  also  appeared  and  moved  for  and  obtained  a 
postponement  of  the  hearing  of  the  matter  until  this  time  against  the 
objection  of  the  defendants,  and  having  read  and  filed,  and  duly 
considered  the  affidavit  and  papers  upon  which  said  writ  was 
granted,  and  the  said  returns  thereto  : 

Now,  after  hearing  the  arguments  of  the  said  Henry  C.  Adams, 
the  relator  in  person,  in  support  of  the  application,  and  of  J.  E, 
Dewey,  of  counsel  for  the  said  defendants,  in  opposition  : 

It  is  ordered  and  adjudged,  that  the  relator  is  not  entitled  to  a 
writ  of  prohibition  absolute,  and  that  his  application  therefor,  and 
such  writ  be,  and  the  same  is,  hereby  denied.  And  the  said  surrogate 
and  the  said  executor  are  hereby  authorized  to  proceed  in  the  said 
matter  or  proceeding  pending  in  or  before  said  surrogate's  court,  and 
referred  to  in  the  alternative  writ,  the  same  as  if  such  writ  had  not 
been  issued. 

Also,  that  the  said  relator,  Henry  C.  Adams,  pay  to  the  defendant, 
Jacob  C.  Nellis,  executor,  etc.,  as  aforesaid,  and  the  said  Zerah  S. 
Westbrook,  surrogate,  etc.,  as  aforesaid,  or  to  their  counsel,  J.  E. 
Dewey,  Esq.,  $50,  costs  and  disbursements  of  opposing  said  appli- 
cation. 

Also,  that  the  papers  upon  which  said  alternative  writ  was  issued, 
and  the  said  writ,  and  the  said  returns  thereto,  be  filed,  and  this 
order  or  adjudication  be  filed  and  entered  in  the  office  of  the  clerk 
of  Montgomery  County.  JOS.   POTTER, 

Justice  Supreme  Court. 


3IO  PROHIBITION. 


Art.  5.     The  Absolute  Writ.     When  Granted. 


Final  Order  Granting  Writ.     (74  Hun,  130.) 

The  People  of  the  State  of  New  York  on  the  relation  ^/Frederick  Hess, 
to  A.  B.  Flansburgh,  Justice  of  the  Peace,  etc. ,  and  to  Horace 
Inman,  greeting  : 

Whereas,  Frederick  Hess  of  the  town  of  Long  Lake  in  the  county 
of  Hamihon,  State  of  New  York,  did  present  to  the  Supreme  Court 
of  the  said  State  of  New  York,  on  the  24th  day  of  January,  1893, 
the  fact  upon  petition  and  affidavit,  and  the  papers  accompanying 
the  same,  that  on  or  about  the  3d  day  of  November,  1892,  Horace 
Inman,  who  resides  in  the  city  of  Amsterdam  in  the  county  of  Mont- 
gomery, said  State,  commenced  an  action  in  the  Supreme  Court  of 
said  State,  as  sole  plaintiff  against  Hess  as  sole  defendant,  laying 
and  making  the  place  of  trial  in  said  Montgomery  County,  said  action 
having  been  commenced  by  the  personal  service  of  a  summons  upon 
said  defendant  at  his  residence  in  said  town  of  Long  Lake.  That 
issue  was  duly  joined  in  said  action  and  that  the  said  cause  was 
duly  noticed  for  trial  and  duly  placed  on  the  calendar  of  and  for  the 
January,  1893,  term  of  the  Circuit  Court,  held  in  iMontgoniery  County 
by  both  said  plaintiff  and  said  defendant. 

That  on  Friday,  January  20th,  1893,  the  said  cause  was  duly  called 
in  its  order  for  trial  at  the  said  Circuit  Court,  his  Honor  Justice  Stover 
presiding,  and  the  trial  of  the  same  was  duly  moved  by  the  said 
defendant,  through  his  attorney  ;  that  said  plaintiff  Inman  through 
his  attorney  and  counsel  announced  that  he  was  not  ready  for  trial 
by  reason  of  the  fact  of  the  plaintiffs  absence,  and  that  they  could 
not  safely  proceed  to  trial  without  him,  and  that  he  was  a  material 
witness  in  his  own  behalf  ;  whereupon  on  motion  of  said  defendant 
Hess  the  complaint  in  said  action  was  dismissed  and  an  order  to 
that  effect  entered  in  the  minutes  of  the  clerk  of  said  court,  but  that 
no  other  or  formal  order  and  no  judgment  have  or  has  been  entered 
in  said  cause. 

That  immediately  after  the  direction  of  the  court  dismissing  the 
complaint,  and  in  the  actual  and  constructive  presence  of  the  court, 
the  said  Frederick  Hess  was  served  with  a  summons  emanating  from 
a  court  of  a  justice  of  the  peace,  issued  by  A.  B.  Flansburgh,  a  jus- 
tice of  the  peace  in  and  for  Montgomery,  N.  Y.,  commanding  the 
said  Frederick  Hess  to  appear  before  the  said  A.  B.  Flansburgh,  as 
said  jusitce  on  the  27th  day  of  January,  1893,  at  one  o'clock  in  the 
forenoon  of  that  day,  at  his  office.  No.  ^^  East  Main  Street,  in  said 
city  of  Amsterdam,  to  answer  the  complaint  of  the  said  Horace  In- 
rnan,  in  an  action  in  which  Horace  Inman  was  the  sole  plaintiff  and 
Frederick  Hess  was  the  sole  defendant,  the  cause  of  action  being 
identically  the  same  as  the  said  action  against  the  said  Hess  in  the 
Supreme  Court  hereinbefore  mentioned  and  described,  the  said  action 
in  the  Supreme  Court  being  still  pending  and  undetermined. 

That  said  Frederick  Hess,  the  relator  herein,  residing  in  the  town 
ot  Long  Lake  as  aforesaid,  in  the  county  of  Hamilton,  State  of  New 
York,  and  outside  of  the  jurisdiction  of  the  said  justice  of  the  peace, 
and  of  his  said  court,  attended  and  was  present  at  the  said  term  of 
the  said  Circuit  Court  solely  as  a  party  and  as  a  witness  in  his  own 


PROHIBI'lION,  311 


Art.  5.     The  Absolute  Writ.     When  Granted. 


behalf,  and  for  no  other  reason  or  purpose  whatsoever ;  and  that  the 
said  Frederick  Hess  was  brought  within  the  jurisdiction  of  the  said 
justice  of  the  peace  by  and  in  consequence  of  his  attendance  at  said 
Circuit  Court,  and  that  the  said  justice  would  have  had  no  jurisdiction 
over  the  person  of  the  said  defendant  Hess  had  he  not  been  brought 
within  the  said  county  of  Montgomery  by  and  through  his  attend- 
ance as  aforesaid  on  said  Circuit  Court. 

Wherefore  said  Frederick  Hess  has  prayed  relief  of  our  said  court, 
and  our  writ  of  prohibition  in  that  behalf. 

We,  therefore,  having  determined  that  the  said  Frederick  Hess  is 
entitled  to  the  said  writ  of  prohibition  and  to  the  said  relief  prayed 
for,  do  hereby  command  you,  and  each  of  you,  that  you  absolutely 
desist  and  refrain  from  any  and  all  further  proceedings  in  a  certain 
action  commenced  in  said  court  of  said  justice  of  the  peace  on  the 
20th  day  of  January,  1893,  by  said  Horace  Inman,  as  plaintiff, 
against  said  Frederick  Hess,  as  defendant,  and  now  pending  in  said 
justices'  court  ;  and  that  all  proceedings  heretofore  taken  in  the  said 
action  in  the  justices'  court  before  said  A.  B.  Flansburgh,  as  said 
justice,  be  and  the  same  are  hereby  vacated  and  annulled. 

Witness,  Hon.  M.  L.  Stover,  one  of  the  justices  of  the  Supreme 
Court  at  the  court-house  in  the  county  of  Montgomery  this  28th  day 
of  February,  1893. 

JOHN  F.  COLLINS, 

Deputy  Clerk. 

Order  for  Peremptory  Writ. 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  court-house  in 

the  county  of  Kings  on  the  30th  day  of  August,  1895. 
Present : — Hon.  Wm.  J.  Gaynor,  Justice. 

People      ex     rel.     Edward     Sprague     et      at., 
Administrators,  etc., 

agst. 

Thomas  W.  Fitzgerald,  District  Attorney,  and 
Acting  Surrogate  of  the  County  of  Richmond, 
and  Mary  L.  Englebrecht. 


15  App.  Div.  531. 


. .J 

The  alternative  writ  of  prohibition  in  this  matter,  made  on  the  23d 
day  of  August,  1895,  and  returnable  on  the  27th  day  of  August,  1895, 
having  been  duly  personally  served  upon  the  respondents,  Thomas 
W.  Fitzgerald  and  Mary  L.  Englebrecht,  as  appears  by  the  certificate 
of  the  sheriff  of  the  county  of  Richmond,  and  said  writ  having  come 
on  to  be  heard  before  Hon.  Wm.  J.  Gaynor.  justice  of  the  Supreme 
Court,  at  a  Special  Term  held  in  the  court-house  in  the  county  of 
Kings  as  aforesaid,  on  the  27th  day  of  August,  1895,  upon  the  papers 
upon  which  the  same  was  granted,  and  Calvin  D.  Van  Name,  Esq., 
having  appeared  for  said  respondents,  Thomas  W.  Fitzgerald  and 
Mary  L.    Englebrecht,    and  having  filed  the  affidavit  of  Mary  L. 


312  PROHIBITION. 


Art.  5.     The  Absolute  Writ.     When  Granted. 


Englebrecht  in  opposition  thereto,  verified  August  26th,  1895,  and 
no  other  affidavit  or  return  being-  filed  or  made  to  said  writ,  after 
hearnig  George  J.  Greenfield,  Esq.,  attorney  for  the  relators,  and 
the  said  Calvin  D.  Van  Name,  Esq.,  attorney  for  the  respondents, 
and  due  deliberation  being  had  ;  it  is 

Ordered,  that  said  writ  of  prohibition  be  made  absolute  and  that 
there  do  issue  out  of  this  court  and  under  the  seal  thereof  a  writ  of 
prohibition  m  the  usual  form  addressed  to  Thomas  W.  Fitzgerald, 
district  attorney  and  acting  surrogate  of  the  county  of  Eichmond, 
and  to  Mary  L.  Englebrecht,  restraining  and  prohibitmg  the  said 
acting  surrogate  from  taking  any  proceedings  under  the  decree  made 
and  entered  by  him  in  the  surrogate's  court  of  Richmond  County  on 
the  17th  day  of  August,  1895,  for  the  removal  of  said  Edward  Sprague 
and  Abigail  Journeay,  administrators  of  David  H.  Journeay,  de- 
ceased, or  either  of  them,  or  for  the  appointment  of  Mary  L.  Engle- 
brecht, or  any  other  person,  as  administratrix  or  administrator  in 
their  place,  or  from  taking  any  proceeding  whatever  for  the  enforce- 
ment of  said  decree  in  that  behalf,  and  prohibiting  and  restraining 
the  said  Mary  L.  Englebrecht  from  carrying  into  effect  or  proceeding 
upon  the  said  decree  in  that  behalf;  and  it  is  also  further 

Ordered  and  adjudged  that  the  said  Mary  L.  Englebrecht  pay  to 
the  relators,  or  their  counsel,  George T.  Greenfield,  Esq.,  ten  dollars 
costs  and  disbursements  awarded  to  the  said  relator  in  this  proceed- 
ing. 

Enter :  W.  J.  G. 

Granted  August  30th,  1895.  H.  C.  SAFFEN, 

Clerk. 

Peremptory  Writ  of  Prohibition.     (15  App.  Div.  531.) 

ITie  People  of  the  State  of  New  York  to  Thomas  W.  Fitzgerald,  district 
attorney  and  acting  surrogate  of  the  county  of  Richrtiond,  in  said 
State,  and  to  Mary  L.  Englebrecht,  greeting  : 
Whereas,  on  the  23d  day  of  August,  1895,  an  alternative  writ  of 
prohibition  was  duly  issued  out  of  this  Supreme  Court  upon  the 
application  of  Edward  Sprague  and  Abigail  Journeay,  administrators 
of  David  II.  Journeay,  deceased,  and  to  Abigail  Journeay,  individu- 
ally, prohibiting  and  restraining  the  said  Thomas  W.  Fitzgerald  and 
Mary  L.  Englebrecht  from  taking  any  proceedings  under  a  certain 
decree  made  and  entered  by  the  said  Thomas  W.  Fitzgerald,  as  act- 
ing surrogate  of  the  county  of  Richmond,  on  the  17th  day  of  August, 
1895,  for  the  removal  of  Edward  Sprague  and  Abigail  Journeay  as 
administrators  of  the  said  David  H.  Journeay,  deceased,  or  either  of 
them,  or  for  the  appointment  of  Mary  L.  Englebrecht,  or  any  other 
person  as  administratrix  or  administrator  in  their  place,  or  for  the 
enforcement  of  said  decree  in  that  behalf  until  the  further  direction 
of  the  court,  which  said  alternative  writ  of  prohibition  was  made 
returnable  on  the  27th  day  of  August,  1895,  at  a  Special  Term  of  the 
Supreme  Court,  held  at  the  court-house  of  the  county  of  Kings  on 
that  day  ;   and 

Whereas,  the  said  alternative  writ  of  prohibition  was  duly  person- 


PROHIBITION.  313 


Art.   6.     Quashing  the  Writ,  Stay  of  Proceedings  and  Appeal. 

ally  served  upon  the  said  Thomas  W.  Fitzgerald  and  Abigail  Journeay, 
and  upon  the  return  day  thereof  the  said  respondents  appeared  by 
Calvin  D.  Van  Name,  Esq.,  their  attorney,  in  opposition  thereto, 
and  the  said  Mary  L.  Englebrecht  having  filed  an  athdavit  in  answer 
thereto,  and  no  other  answer  or  return  being  made  to  said  writ,  and 
after  hearing  the  respective  counsel  of  the  said  parties,  and  due 
deliberation  being  had,  it  was  ordered  that  the  said  writ  be  made 
absolute,  and  that  there  issue  out  of  this  court  under  the  seal  thereof  a 
writ  of  prohibition  in  the  usual  form  addressed  to  the  said  respond- 
ents above  named  ; 

We,  therefore,  being  willing  that  the  laws  and  customs  of  our 
State  should  be  observed,  and  that  our  citizens  should  in  no  wise  be 
oppressed,  do  command  you  that  you  desist  and  refrain  from  taking- 
any  proceeding  under  the  said  decree  made  and  entered  by  you, 
Thomas  W.  Fitzgerald,  in  the  surrogate's  court  of  the  county  of 
Richmond  on  the  17th  day  of  August,  1895,  as  acting  surrogate,  for 
the  removal  of  said  Edward  Sprague  and  Abigail  Journeay,  admin- 
istrators of  the  estate  of  David  H.  Journeay,  or  either  of  them,  or 
for  the  appointment  of  Mary  L.  Englebrecht,  or  any  other  person, 
as  administratrix  or  administrator  in  their  place,  or  for  the  enforce- 
ment of  said  decree  in  that  behalf;  and  that  you,  Mary  L.  Engle- 
brecht, desist  and  refrain  from  carrying  into  effect  or  proceeding 
upon  the  said  decree  in  that  behalf. 

Witness,  Hon.  Wm.  J.  Gaynor,  one  of  the  justices  of  the  Supreme 
Court  at  the  court-house  in  the  county  of  Kings  the  4th  day  of  Sep- 
tember,  1895. 

Bv  the  court.  JOHN  H.  ELSWORTH, 

Clerk. 

Indorsed  : — "  The  within  writ  of  prohibition  allowed  this  4th  day 
of  September,    1895. 

"WM.  J.  GAYNOR, 

^^  Justice  Supreme  Court.'' 


ARTICLE  VI. 

Quashing  the  Writ,  Stay  of  Proceedings  and  Appeal. 
§§  2097,  2101,  2102. 

§  2097.  Legal  objections;  how  taken;  motion  to  quash  or  set 
aside  writ. 

An  alternative  writ  of  prohibition  cannot  be  quashed  or  set  aside,  upon  motion,  for 
any  matter  involving  the  merits.  An  objection  to  the  legal  sufficiency  of  the  papers 
upon  which  the  writ  was  granted,  may  be  taken  in  the  return.  A  motion  to  quash  an 
absolute  writ  of  prohibition,  or  to  set  aside  an  alternative  writ,  for  any  matter  not  in- 
volving the  merits,  must  be  made  at  a  term  where  the  writ  might  have  been  granted. 

§  2101.     [Am'd,  1895.]    Appeal. 

A  final  order,  made  as  prescribed  in  the  last  section,  can  be  reviewed  only  by 
appeal.  Where  the  order  was  made  by  the  appellate  division,  the  execution  of  the 
order  appealed  from  shall  not  be  stayed,  except  by  an  order  made  at  a  term  of  the  ap- 


314  PROHIBITION. 


Art.  6.     Quashing  the  Writ,  Stay  of  Proceedings  and  Appeal. 

pellate  division  in  the  same  department  upon  such  trems*  as  to   security,  or  other- 
wise, as  justice  requires. 

See  L.  1873,  ch.  70,  §  3 ;  also,  §  2087  ;  L.  1895,  ^h.  946. 

§  2102.  [Am'd,  1895.]   Stay  of  proceedings ;  enlargement  of  time. 

The  proceedings  upon  a  writ  of  prohibition,  granted  at  a  Special  Term,  may  be 
stayed,  and  the  time  for  making  a  return,  or  for  doing  any  other  act  thereupon,  as 
prescribed  in  this  article,  may  be  enlarged,  as  in  an  action,  by  an  order  made  by  the 
judge  of  the  court,  but  not  by  any  other  ofificer.  Where  the  writ  was  granted  at  a 
term  of  the  appellate  division,  an  order  staying  the  proceedings,  or  enlarging  the  time 
to  make  a  return,  can  be  made  only  by  a  justice  of  the  appellate  division  of  the  judi- 
■cial  department  within  which  the  writ  is  returnable  ;  and  where  notice  has  been  given 
of  an  application  for  a  prohibition  at  a  term  of  the  appellate  division,  or  an  order  has 
been  made  to  show  cause  at  such  term,  why  a  prohibition  should  not  issue,  a  stay  of 
proceedings  shall  not  be  granted,  before  the  hearing,  by  any  court  or  judge. 

A  writ  of  prohibition  not  being  demandable  of  right,  but  resting 
in  sound  judicial  discretion,  an  order  denying  is  it  not  reviewable 
in  the  Court  of  Appeals.     People  ex  rel.  v.  Westbrook^  89  N.  Y. 

152. 

*  So  in  the  original. 


CHAPTER  VII. 

THE  WRIT  OF  ASSESSMENT  OF  DAMAGES. 

The  provisions  of  article  6  of  title  2  of  chapter  i6  relate  to  the 
assessment  of  damages  of  property  taken  by  the  State  for  the 
use  of  the  people  of  the  State.  The  article  is  a  re-enactment  of  a 
portion  of  the  Revised  Statutes  (3  R.  S.,  5th  ed.,  501  ;  2  Edm.  610, 
612)  materially  amended  as  to  the  details  of  the  proceedings.  The 
commissioners  say  that  no  substantial  changes  have  been  made  in 
the  scheme  of  the  statute,  except  as  to  what  is  now  enacted  as 
§  211 1  ;  as  to  this,  the  codifiers  state  that  the  former  statute  re- 
quired the  jury  on  inquisition  to  find  upon  several  questions  upon 
which  there  might  be  conflict  of  evidence,  and  very  nice  points 
of  law  might  arise  ;  while  it  provided  no  adequate  machinery  for 
the  determination  of  these  questions,  and  that  the  amendments 
contemplate  the  restriction  of  the  jury  entirely  to  the  question 
of  value.  The  fact  that  this  proceeding  is  always  taken  by  the 
attorney-general  on  behalf  of  the  State,  that  it  is  exceedingly 
unusual,  and  that  its  details  concern  only  the  office  of  the 
attorney-general,  where  precedents  are  at  hand,  seem  to  render  it 
unnecessary  to  incumber  this  book  with  forms  which  must  neces- 
sarily be  obtained  from  that  office,  and  which  would  be  of  no  use 
to  any  other  practitioner.  The  same  consideration  seems  to 
render  it  superfluous  to  reprint  the  sections  of  the  Code  on  tha,t 
subject,  from  2103  to  21 19  inclusive,  and  hence  they  are  omitted. 
The  single  reported  case  on  the  subject  under  the  Revised  Statutes 
is  United  States  v.  Dumplin  Island,  I  Barb.  24,  which  relates  to 
the  practice  as  it  then  stood. 


CHAPTER  VIII. 

WRIT  OF  CERTIORARI.* 

PAGE. 

Article  i.  Office  of  writ  of  certiorari ....  317 

2.  When  the  writ  issues,  and  to  what  body  or  officer. 

§§   2120,2121,2122,2146 320 

3.  What    court   may  issue    writ,  and  within  what   time. 

§§2123,2124,2125,2126 338 

4.  Petition  and  notice   of  appUcation  for   the  writ.     §§ 

2127,2128.... 342 

5.  The  writ.      §   2129 35^ 

6.  Proceedings  upon  the  writ.  §§  2130,  2131,  2132,  2137.  368 

7.  Return  to  writ  and   proceedings    thereon.     §§   2133, 

2134,  2135,  2136,   2139 374 

8.  Hearing  and  questions  to   be  determined.     §§   2138, 

2140 386 

9.  Final    order    and    its    effect.      §§   2141,    2142,    2144, 

2145'  2143'  3253 408 

10.  Restriction  on  the  right  to  the  writ.      §§  2147,2148.  416 

1 1 .  Appeals 417 

Sections  of  the  Code   and  Where  Found  in  this  Chapter. 

SEC                                                                                                                                                                                                                              ART.  PAGE. 

2120.  Cases  where  writ  may  issue 2  320 

2121,2122.     Cases  where  it  cannot  issue 2  320 

2123.  When  issued  from  Supreme  Court 3  33S 

21 24.  When  from  another  court 3  33^ 

2125.  Limitation  of  time  for  review 3  33^ 

21 26.  Id. ;  in  case  of  disability. . . . : 3  339 

21 27.  Application  for  writ ;  where  and  how  made 4  342 

2128.  When  notice  necessary  ;    service  thereof 4  342 

2129.  To  whom  writ  directed 5  35^ 

2130.  Mode  of  service 6  368 

21 31.  Stay  of  proceedings 6  368 

2132.  When  and  where  writ  returnable o  3"^ 

2133.  .Subsequent  proceedings  as  in  an  action 7  374 

2134.  Return  ;  when  and  how  made 7  474 

2135.  Id. ;  how  compelled  ;   fees  for  making 7  374 

2136.  Id. ;  after  term  of  office  expired 7  374 

2137.  When  third  person  may  be  brought  in 6  369 

2138.  Hearing  upon  return 8  387 


*  See  on  this  subject  Encyclopaedia  of  Practice  and  Pleading  ;   Harris  on  Certiorari. 
Certiorari  to  Review  Assessments  is  treated  under  "  Proceedings  under  the  Tax  Law." 
316 


WRIT   OF   CERTIORARI.  317 

Art.   I.     Office  of  Writ  of  Certiorari. 

SEC.  ART.   PAGE. 

2139.  Id. ;  upon  affidavits 7  374 

2140.  Questions  to  be  determined 8  386 

2 141.  Final  order  upon  the  hearing 9  408 

2142.  Restitution  may  be  awarded 9  408 

2143.  Costs   5  409 

2144.  Entry  and  enrollment  of  final  order 9  409 

2145.  Effect  thereof 9  409 

2146.  "  Body  or  officer  "  ;  "determination";   what  they  include 2  320 

2147.  Application  of  this  article  to  certain  special  cases 10  416 

2148.  Id. ;  to  civil  cases  only 10  416 

3253.  Additional  allowances  to  either  party  in  difficult  cases,  etc 9  409 

ARTICLE  I. 

Office  of  Writ  of  Certiorari. 

It  is  said  by  a  recent  text  writer  that  the  office  of  the  writ  of 
certiorari  is  to  correct  errors  of  a  judicial  character  by  inferior 
courts,  and  errors  in  the  determination  of  special  tribunals,  com- 
missioners, magistrates,  and  officers  exercising  judicial  powers 
affecting  the  property  or  right  of  citizens,  and  who  act  in  a  sum- 
maiy  way,  or  in  a  new  way  not  known  to  the  common  law,  and 
also  the  proceedings  of  municipal  corporations  in  certain  cases. 
Wood  on  Mandamus,  194.  The  writ  of  certiorari  has,  under  the 
practice,  been  known  as  a  common-law  certiorari,  and  certiorari 
by  statute.  The  former  is  defined  in  Bacon's  Abridgment,  title 
Certiorari,  as  a  writ  issuing  out  of  Chancery  or  the  King's  Bench, 
directed  to  the  judges  or  officers  of  inferior  courts  or  tribunals, 
commanding  them  to  return  the  records  of  a  cause  or  proceeding 
pending  before  them.  It  also,  according  to  Tidd's  Practice, 
II 38,  comprehends  the  determination  of  special  tribunals,  magis- 
trates, officers,  and  of  municipal  corporations  in  certain  cases.  It 
brought  up  the  record  either  for  the  purpose  of  examining  into 
the  legality  of  the  proceedings,  or  annulling  or  quashing  an  order 
or  judgment  of  such  inferior  court,  given  in  a  matter  over  which 
the  court  had  no  jurisdiction,  or  for  the  purpose  of  giving  a  de- 
fendant sued  in  such  inferior  court  surer  and  more  certain  justice 
before  a  higher  tribunal.     Addison  on  Torts,  1042. 

The  statutory  writ,  as  its  title  implies,  issues  under  a  statute 
authorizing  the  granting  of  the  remedy,  and  previous  to  the  Code 
of  Civil  Procedure  such  statutes,  to  a  greater  or  less  extent,  pre- 
scribed the  forms  and  methods  to  be  followed  in  laying  down  the 


3i8 


WRIT   OF   CERTIORARI. 


Art.   I.     Office  of  Writ  of  Certiorari. 


rules  governing  its  operation.     The  common-law  writ  had  its  scope 
and  character  clearly  defined  by  a  long  line  of  authorities,  showing 
the    occasions    upon    which  it  would  be  granted,   and  a  distinct 
and  well-defined  practice  had  grown  up  with  its  administration. 
Most  of  these  rules  were  followed  in  practice  under  the  statutory 
writ,  and  they  have  formed  the   basis  for  the  present   regulation 
found  in  the  Code.     It  is  said  in  People  v.  Van  Alstyne,  32  Barb. 
131,  that  "sometimes  the  writ   is  expressly  authorized,  and   its 
limits  defined  by  statute,  and  then,  of  course,  the  nature  and  ex- 
tent of  the  powers  and  the  cases  in  which  it  is  to  be  exercised  de- 
pend  mainly,  if   not   entirely,  on   the   provisions   of   the  statute  ; 
sometimes  there  is  no  statutory  regulation  on  the  subject,  and 
then    the  writ  is  denominated  a   common-law  certiorari^     The 
common-law  writ  was  much  more  usual  in  practice,  although  there 
were  a  number  of  statutes  prior  to  the  Repealing  Act.     But  no 
statute  had  defined  the  general  use  and  character  of  the  writ  which 
is,  by  the  present  section,  only  restricted  to  the  two  general  classes 
described  as  common  law  and  statutory.     The  practice  had,  aside 
from  exceptional  cases  under  the  statutory  writ,  never  been  codi- 
fied, and  was  the  outcome  of  common-law  procedure,  and  regulated 
by  the  decisions  of  the  courts.     Since  there  is  in  the  present  sec- 
tion  no   attempt   to  define  with   more   particularity  than  above 
stated  the  cases  in  which  the  writ  is  allowed  to  issue,  the  follow- 
ing quotation  is  made  from  the  note  of  the  revisers  in  their  report 
of  the  article,  in  form  substantially  as  at  present,  to  the  legislature  : 
"  I.  A  court  of  general  jurisdiction  may,  in  its  discretion,  upon 
the  application  of  any  party,  to  or  in  certain  illy  defined  cases,  a 
person  interested  in  a  suit  or  proceeding  before  any  inferior  court, 
tribunal,  board,  officer,  or  other  person,  vested   by  law  with  an 
authority  judicial  in  its  nature  {East on  v.  Calendar,  ii  Wend.  90; 
Matter  'of  Mt.  Morris  Square,  2  Hill,  14;  People  v.  Van  Alstyne, 
32  Barb.   131  ;    People  v.  Board  of  Health,  33  id.  344;  s.  c.   12 
Abb.  Pr.  88;    People  v.  Supervisors  of  Livingston,  43  Barb.  232); 
and,  perhaps,  also  where  the  power  is  ministerial  in  its  nature,  but 
necessarily  connected  with  judicial  authority  {People  v.  Hill,  7  Alb. 
L.  J.  220),  issue  a  writ  of  certiorari  to  review  any  final  determina- 
tion, judicial  in  its  nature,  made  in  such  proceeding,  by  such  au- 
thority (or,  under  color  thereof,  Pitch  v.  Kirkland  Commissioners, 
22  Wend.  132;    People  v.  Suffolk  Judges,  24  id.  249);    where   the 
applicant  cannot  be  adequately  relieved  in  any  other  way.     Peo- 


WRIT   OF   CERTIORARI.  319 

Art.   I.     Office  of  Writ  of  Certiorari. 

pie  V.  Supervisors  of  Queens,  i  Hill,  195  ;  People  v.  Board  of 
HealtJi,  33  Barb.  344;  12  Abb.  Pr.  88;  People  v.  Overseers,  etc., 
44  Barb.  467. 

"  2.  A  court  of  general  jurisdiction  may,  in  its  discretion,  upon 
the  application  of  any  party  to  a  proceeding  before  it,  or  of  its  own 
motion,  issue  the  writ  to  procure,  from  any  such  inferior  authority, 
information  which  the  latter  has,  and  which  is  necessary  or  con- 
venient for  the  purposes  of  justice  in  the  course  of  the  proceed- 
ings in  the  higher  court.  2  R.  S.  599,  part  3,  chap.  9,  title  3,  §  45 
(2  Edm.  621) ;  Graham  v.  People,  6  Lans.  149  ;  Kanouse  v.  Martin, 
3  Sandf.  593  ;  People  v.  Cancenii,  7  Abb.  Pr,  271  ;  Sweet  v.  Over- 
seers of  Clinton,  3  Johns.  23. 

"  3.  The  common-law  remedy,  as  thus  defined,  is  not  taken 
away,  in  the  absence  of  express  words  to  that  effect,  either  by  a 
provision  of  the  statute  that  the  determination  of  the  inferior 
tribunal  is  final  (^Le  Roy  v.  Mayor,  etc.,  20  Johns.  430;  Ex  parte 
Mayor,  etc.,  23  Wend.  277;  People  v.  Freeman,  3  Lans.  148),  or 
by  a  provision  in  a  statute  giving  a  special  writ.  Comstock  v. 
Porter,  5  Wend.  98  ;  Kellogg  v.  Church,  3  Denio,  228.  In  the 
latter  case  the  two  remedies  are  concurrent." 

This  citation,  with  the  authorities,  is,  perhaps,  as  explicit  a 
statement  as  can  be  made  of  the  principles  regulating  the  issue  of 
this  writ.  Previous  to  the  Code  of  Civil  Procedure  the  common- 
law  writ  had  been  much  used  to  bring  up  matters  for  a  review 
from  inferior  courts,  which  were  there  provided  for  by  appeal,  and 
the  restrictions  as  to  the  use  of  the  writ  will  be  found  enacted 
here. 

Certiorari  is  not  a  writ  of  right,  therefore  the  action  of  the 
legislature  in  taking  away  the  right  to  the  writ  is  not  in  violation 
of  the  New  York  Constitution,  article  6,  §  6,  providing  for  the  Su- 
preme Court  with  general  jurisdiction  in  law  and  equity.  People 
ex  rel.  v.  Board  of  Supervisors,  49  Hun,  476,  2  Supp.  555. 

The  rule  of  the  common-law  which  treated  the  writ  of  certiorari 
as  analogous  to  a  writ  of  error  has  no  application  to  the  present 
statutory  proceeding  under  which,  by  §  21 21,  Code  Civil  Proced- 
ure, the  writ  of  certiorari  cannot  issue  to  review  a  determination 
in  a  civil  action  or  special  proceeding  by  a  court  of  record,  or  a 
judge  of  a  court  of  record.  Beardslec  v.  Dolge,  143  N.  Y.  166^ 
62  St.  Rep.  187. 


320  WRIT   OF   CERTIORARI. 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

ARTICLE  11. 

When  the  Writ  Issues,  and  to  What  Body  or  Officer. 
§§  2 1 20,  21 21,  2122,  2146. 

§  2120.  Cases  where  writ  may  issue. 

The  writ  of  certiorari  regulated  in  this  article,  except  the  writ  specified  in  §  2124  of 
this  act,  is  issued  to  review  the  determination  of  a  body  or  officer.  It  can  be  issued 
in  one  of  the  following  cases  only  : 

1.  Where  the  right  to  the  writ  is  expressly  conferred,  or  the  issue  thereof  is  ex- 
pressly authorized,  by  a  statute. 

2.  Where  the  writ  may  be  issued  at  common  law,  by  a  court  of  general  jurisdiction, 
and  the  right  to  the  writ,  or  the  power  of  the  court  to  issue  it,  is  not  expressly  taken 
away  by  a  statute. 

§  2121.  Cases  where  it  cannot  issue. 

A  writ  of  certiorari  cannot  be  issued,  to  review  a  determination,  made,  after  this 
article  takes  effect,  in  a  civil  action  or  special  proceeding,  by  a  court  of  record  or  a 
judge  of  a  court  of  record. 

See  §§  1356  and  1357,  also  §  2. 

§  2122.  The  same. 

Except  as  otherwise  expressly  prescribed  by  a  statute,  a  writ  of  certiorari  cannot  be 
issued,  in  either  of  the  following  cases  : 

1.  To  review  a  determination,  which  does  not  finally  determine  the  rights  of  the 
parties  with  respect  to  the  matter  to  be  reviewed. 

2.  Where  the  determination  can  be  adequately  reviewed,  by  an  appeal  to  a  court, 
or  to  some  other  body  or  officer. 

3.  Where  the  body  or  officer,  making  the  determination,  is  expressly  authorized,  by 
statute,  to  rehear  the  matter,  upon  the  relator's  application ;  unless  the  determination 
to  be  reviewed  was  made  upon  a  rehearing,  or  the  time  within  which  the  relator  can 
procure  a  rehearing  has  elapsed. 

§  2146.  "Body  or  oflacer "  ;  "determination";  what  they  in- 
clude. 

The  expression,  "  body  or  officer,"  as  used  in  this  article,  includes  every  court  trib- 
unal, board,  corporation,  or  other  person,  or  aggregation  of  persons,  whose  deter- 
mination may  be  reviewed  by  a  writ  of  certiorari ;  and  the  word,  "  determination,"  as 
used  in  this  article,  includes  every  judgment,  order,  decision,  adjudication,  or  other 
act  of  such  a  body  or  officer,  which  is  subject  to  be  so  reviewed. 

The  writ  is  a  discretionary  one,  and  the  court  has  power  to  grant 
or  withhold  it.  It  cannot  be  demanded  as  a  matter  of  right,  and 
it  lies  in  the  sound  discretion  of  the  court  whether  to  grant  or  with- 
hold it,  and  it  is  the  duty  of  the  court  to  examine  the  matter  and 
determine  whether  justice  requires  its  allowance.  This  is  so  well 
settled  and  so  strictly  followed  that  the  Court  of  Appeals,  when  a 
writ  is  quashed  at  General  Term,  refuses  to  entertain  an  appeal, 
holding  it  is  a  matter  of  discretion  in  the  court  below,  unless  the 
order  appealed  from  states  that  it  was  refused  for  want  of  power  in 


WRIT   OF   CERTIORARI.  32 1 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

the  court  to  grant  it.  People  ex  rel.  Mayor  v.  McCarthy,  102  N.  Y. 
642,  It  is  said  in  People  ex  rel.  Smith  v.  Coimnissioners,  etc.,  3  St. 
Rep.  615,  103  N.  Y.  370  :  "  An  order  which  simply  quashes  a  com- 
mon-law certiorari  has  often  been  held  not  appealable  to  this  court, 
because  the  issuing  of  the  writ  rests  in  the  discretion  of  the  court, 
and  consequently  it  can,  in  its  discretion,  recall  or  quash  the  writ 
without  passing  on  the  validity  of  the  proceeding  sought  to  be 
reviewed."  The  authorities  are  numerous  and  uniform  on  this 
point  in  this  State,  although  a  different  rule  has  been  held  in  Eng- 
land, and  also  in  Massachusetts.  People  v.  Peabody,  26  Barb.  437  ; 
People  V.  Board  of  Health,  33  id.  344  ;  People  v.  City  of  Rochester, 
21  id.  656;  Matter  of  Eightieth  Street,  17  Abb.  324;  Peoples. 
Common  Council  of  Utica,  i\^  How.  289;  People  v.  Andrews,  52 
N.  Y.  445  ;  People  v.  Hill,  53  id.  547.  The  court  must  be  satisfied 
that  the  writ  is  necessary  to  prevent  injustice  to  the  applicant,  and 
that  it  would  be  beneficial  to  him  and  not  detrimental  to  the 
public  welfare.  People  v.  Mayor,  5  Barb.  43.  Nor  will  it  lie  where 
there  is  another  adequate  remedy.  The  writ  is  only  to  be  resorted 
to  in  case  where  an  appeal  or  other  appropriate  and  proper  remedy 
is  not  available,  and  should  not  be  resorted  to  unless  necessary  to 
obtain  a  review  in  cases  where  no  other  provision  therefor  is  made 
by  law.  People  v.  Supervisors  of  Queens,  i  Hill,  195  ;  People  v. 
Covert,  id.  674 ;  People  v.  Morgan,  65  Barb.  473  ;  People  v.  Over- 
seers of  Ber7te,  44  id.  467  ;  People  v.  Board  of  Health,  33  id.  344, 
The  writ  lies  only  to  review  acts  judicial  in  their  nature,  and  will 
not  be  granted  to  review  mere  ministerial  acts.  People  v.  Mayor, 
5  Barb.  43  ;  People  v.  Hill,  65  id.  170 ;  People  v.  Vanslyck,  4  Cow. 
297  ;  Piigsley  v.  Anderson,  3  Wend.  468  ;  People  v.  Mayor,  2  Hill, 
9;  Matter  of  Mount  Morris  Square,  id.  14.  And  in  such  cases 
where  there  was  a  judicial  discretion  to  be  exercised  by  the  in- 
ferior tribunal,  the  writ  should  be  refused.  Lazvton  v.  Commis- 
sioners of  Cambridge,  2  Caines,  179.  The  present  Code  does  not 
authorize  the  review  or  modification  of  the  determination  of  in- 
ferior jurisdictions  in  matters  within  that  jurisdiction  which  are 
confided  to  their  discretion.  People  ex  rel.  v.  Fire  Commissioners, 
100  N.  Y.  82.  It  corrects  errors  of  a  judicial  not  of  a  ministerial 
nature,  even  though  the  body  exceeds  its  powers,  and  the  same  is 
true  as  to  legislative  acts.  People  v.  Board  of  HcaltJi,  33  Barb. 
344.  Where  certiorari  is  the  only  relief,  and  justice  cannot  be 
done  without  having  the  return  of  a  ministerial  ofificer  in  the  same 

21 


322  WRIT   OF    CERTIORARI. 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  OflBcer. 

matter  before  the  court,  he  should  be  compelled  to  make  a  return. 
People  V.  Hill,  65  Barb.  1 70.  But  the  writ  will  not  issue  to  a 
purely  ministerial  officer  to  review  his  action.  People  v.  Waller^ 
68  N.  Y.  403.  Nor  does  it  lie  to  a  ministerial  officer  to  examine 
process  under  which  he  acts  or  his  title  to  office.  People  v.  Super- 
visors of  Queens,  I  Hill,  195.  The  writ  has  been  refused  to  review 
the  proceedings  of  persons  who  are  not  officers,  though  they  have 
assumed  to  act  as  such.  If  they  are  officers  de  facto  their  acts  are 
valid.  If  they  are  not  such,  then  their  acts  are  void.  People  v. 
Covert,  I  Hill,  674.  Title  to  office  will  not  be  inquired  into  by  the 
writ.  Coyle  v.  Sherzvood,  i  Hun,  272.  The  writ  does  not  lie 
until  after  final  adjudication  by  the  inferior  tribunal.  Lynde  v. 
Noble,  20  Johns.  80;  Berlin  v.  Piatt,  11  Abb.  398;  Matter  of 
Hamilton,  58  How.  290.  And  in  forcible  entry  and  detainer  it 
was  refused  until  after  final  inquisition  found.  Hains  v.  Wendell, 
4  Wend.  213  ;  People  v.  Covill,  10  Week.  Dig.  90.  Certiorari 
does  not  issue  to  officers  or  bodies  exercising  judicial  functions  till 
the  proceedings  below  are  completed  and  a  final  determination  had, 
A  tax  cannot  be  reviewed  before  the  assessment  roll  is  adopted 
or  warrant  signed.     People  v.  Trustees  of  Pahnyra,  3  Hun,  549. 

It  was  said  in  an  early  case  in  this  State,  that  wherever  the 
rights  of  an  individual  are  infringed  by  the  acts  of  persons  clothed 
with  authority  to  act,  and  who  exercise  that  power  illegally  and 
to  the  injury  of  an  individual,  the  person  injured  may  have  redress 
hy  certiorari.  Wildyv.  Waslidurn, 16  Johns.  4g.  This  is  now,  of 
course,  subject  to  the  qualification  that  no  appeal  is  allowed  by 
law  in  such  case.  It  is  also  said  that  the  writ  runs  not  only  to 
courts,  but  to  persons  invested  with  authority  to  decide  on  the 
property  or  rights  of  citizens,  even  where,  by  statute,  they  are 
finally  to  hear  and  determine  if  right  to  the  writ  is  not  expressly 
taken  away.  People  v.  Freeman,  3  Lans.  148;  Leroy  v.  The 
Mayor,  20  Johns.  429;  Bradhiirst  v.  Turnpike  Co.,  16  id.  8  ;  Ex 
parte  Mayor  of  Albany,  23  Wend.  277.  That  such  a  provision  in 
a  statute  is  a  bar  to  the  writ  is  held  in  People  v.  Betts,  55  N.  Y. 
600,  a  leading  case  on  the  subject. 

It  was  also  said  before  the  present  Code  as  to  the  province  of 
the  writ,  that  it  was  to  bring  up  the  record  or  proceedings  of  an 
inferior  court  or  tribunal,  to  enable  the  reviewing  court  to  decide 
whether  it  had  acted  within  its  jurisdiction.  This  has  in  some 
cases   been   extended  to  the  correction   of  errors,  but  it  is  only 


WRIT    OF   CERTIORARI.  323 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

allowable  where  there  is  no  other  remedy  available,  and  where  it 
is  necessary  to  prevent  injustice.  People  V.  Betts,  55  N.  Y.  600. 
Also  that  the  office  of  the  writ  extends  to  the  review  of  all  ques- 
tions of  jurisdiction,  power,  and  authority  of  the  inferior  tribunal 
to  do  the  acts  complained  of,  and  all  questions  of  regularity  in 
the  proceeding,  that  is,  all  questions  whether  the  inferior  tribunal 
has  kept  within  the  boundaries  prescribed  for  it  by  express  terms 
of  statute  law,  or  by  the  common  law.  People  v.  Board  of 
Assessors,  39  N.  Y.  81.  The  writ  will  not  lie  to  try  title  to  office, 
and  the  fact  that  a  public  agent  exercises  judgment  and  discretion 
in  the  performance  of  his  duties  does  not  make  his  action  judicial. 
People  V.  Walter,  68  N.  Y.  403.  The  writ  lies  only  to  a  tribunal 
or  officer  exercising  judicial  powers  to  correct  errors  of  law  ma- 
terially affecting  the  rights  of  the  parties.  People  v.  Board  of 
Commissioners,  97  N.  Y.  ^j.  It  does  not  He  to  review  the  order 
of  a  board  of  health  declaring  a  business  a  nuisance,  as  it  is 
a  legislative  act.     People  v.  Board  of  HealtJi,  33  Barb.  344. 

Certiorari  will  not  lie  to  correct  the  proceedings  of  a  county 
board  of  supervisors  in  the  equalization  of  assessments  between 
towns  ;  there  being  an  adequate  remedy  provided  by  appeal  to  the 
State  assessors,  Peo.  ex  rel  Hill  v.  Board  of  Supervisors,  2  Supp, 
557.  Section  2120  of  the  Code  preserves  the  writ  of  certiorari  as 
it  existed  at  common  law,  except  where  it  is  especially  taken  away 
by  statute.  Thus  certiorari  is  the  proper  remedy  to  review  a  de- 
termination of  the  board  of  health  in  relation  to  the  existence  and 
abatement  of  a  nuisance.  Peo.  ex  rel.  v.  TJie  Board  of  Health  of 
Seneca  Falls,  35  St.  Rep.  411,  12  Supp.  562.  Certiorari -^\\\  lie 
to  review  the  error  of  a  county  judge  confirming  the  report  of 
commissioners  appointed  to  lay  out  a  highway,  because  in  pro- 
ceedings of  that  character  the  county  judge  acts  not  as  a  judge 
of  any  court  but  as  an  officer  specially  designated  by  statute 
under  his  title  of  office.  His  order  therefor  is  not  appealable. 
Peo.  ex  rel.  Tittsworth  v.  Nash,  38  St.  Rep,  730,  15  Supp.  29. 
Certiorari  lies  to  review  the  action  of  police  commissioners  in 
designating  newspapers  to  publish  a  list  of  candidates  for  election. 
The  court  says  :  "  Under  such  circumstances,  a  court  having  general 
jurisdiction  to  review  and  correct  the  errors  of  subordinate  trib- 
unals should  not  cramp  its  authority  within  the  narrowest  limits  ; 
but  hold  that  it  is  broad  enough  to  correct  the  evil  complained  of 
unless  prevented  by  the  force  of  some  statute.     The  common-law 


324  WRIT   OF   CERTIORARI. 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

power  of  this  court  to  correct,  by  means  of  this  writ,  the  errors  of 
inferior  tribunals  exercising  judicial  or  quasi-judicial  power,  is  pre- 
served by  the  Code  of  Civil  Procedure,  §  2120."  Peo.  ex  rel.  v. 
Martin,  72  Hun,  369,  55  St.  Rep.  453.  Certiorari  Wqs  to  review 
a  decision  made  by  the  commissioners  of  the  land  ofifiice  direct- 
ing the  issuing  of  letters  patent  for  lands  under  water,  and  it  is 
no  valid  objection  to  such  review  that  the  grant  in  pursuance  of 
the  decision  will  be  void.  Pco.  ex  rel.  Bur  ham  v.  Jones,  112 
N.  Y.  608. 

Certiorari  lies  to  review  the  action  of  a  board  of  aldermen, 
being  the  only  mode  by  which  the  action  of  the  board  can  be  cor- 
rected or  changed  in  case  such  action  is  erroneous.  In  re  McLean, 
6  Supp.  231.  Certiorari  lies  in  any  case  where  it  would  lie  at 
common  law  unless  it  is  expressly  taken  away  by  statute.  It 
therefore  lies  to  commissioners  of  appraisal  to  review  their  proceed- 
ings in  making  an  award  of  damages  in  street  opening  case.  Mat- 
ter of  Fitch,  147  N.  Y.  337.  It  seems  that  certiorari  lies  to 
review  the  determination  of  a  board  of  railroad  commissioners 
in  giving  or  withholding  its  consent  to  the  discontinuance  of  a 
railroad  station.  People  ex  rel.  Lanrois  v.  Commissioners,  32  App. 
Div.  168,  52  Supp.  901. 

The  action  of  the  State  superintendent  of  public  instruction  in 
removing  a  member  of  the  board  of  education  in  a  free  school 
district  constituted  under  Laws  1858,  chap.  34,  and  the  amenda- 
tory acts  is  not  made  final  by  Consolidated  School  Law,  title  14, 
§  I,  and  may  therefore  be  reviewed  by  certiorari.  Matter  of 
Light,  30  App.  Div.  53.  The  writ  lies  to  the  board  of  railroad 
commissioners  to  review  its  determination  upon  an  application 
by  a  street  surface  railroad  company  for  permission  to  change 
its  motive  power.  People  ex  rel.  Babylon  R.  R.  Co.  v.  Commis- 
sioners, 32  App.  Div.  182.  As  no  appeal  is  provided  by  statute 
from  a  judgment  of  a  police  court,  the  proper  remedy  for  the 
review  of  the  determination  of  that  court  is  by  certiorari.  Peo. 
ex  rel.  v.  City  of  Rochester,  44  Ilun,  172.  Certiorari  issues  to 
review  the  proceedings  of  a  board  of  health  to  remove  a  nuisance, 
if  the  decision  of  such  board  \\  hen  made  is  a  final  adjudication 
from  which  there  is  no  appeal.  People  v.  Board  of  Health,  58 
Hun,  598.  Where  there  is  a  special  act  providing  for  the  review 
of  assessments  by  certiorari,  the  statute  itself  determines  the 
procedure  ;  and  the  provisions  of  the  Code  of  Civil   Procedure  in 


WRIT  OF   CERTIORARI.  325 


Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Ofl&cer. 


reference  to  certiorari  are  not  applicable.  Pco.  ex  rel.  v.  The 
Assessors  of  Taxes  of  the  Town  of  Greenburgh,  106  N.  Y.  671. 
At  common  law  the  writ  of  certiorari  lies  only  to  inferior 
courts  and  officers  exercising  judicial  functions,  and  the  act  to  be 
reviewed  must  be  judicial  in  its  nature,  and  not  ministerial  or 
legislative  ;  therefore  a  republican  county  committee  not  being  a 
judicial  officer  or  body,  its  determination  that  a  certain  person 
was  elected  chairman  cannot  be  reviewed  by  certiorari.  Peo.  ex 
rel.  Trayer  Lauterbach,  7  App.  Div.  294. 

The  order  of  a  county  court  confirming  the  report  of  commis- 
sioners appointed  under  the  Highway  Law  to  lay  out  and  open  a 
highway  cannot  be  reviewed  by  certiorari,  even  though  there  is  no 
appeal  from  such  order.  Peo.  ex  rel.  v.  County  Court  of  Onondaga, 
4  App.  Div.  542,  70  St.  Rep.  844.  Certiorari  will  lie  to  review 
the  action  of  commissioners  in  laying  out  a  highway  under  the 
statute,  when  such  action  is  claimed  to  be  illegal,  upon  the  ground 
that  the  act  is  unconstitutional.  People  ex  rel.  v.  Hosier,  56  Hun, 
64,  8  Supp.  621  ;  see,  also,  People  ex  rel.  v.  Stedman,  57  Hun,  280, 
10  Supp.  787  ;  see,  also,  for  decisions  under  the  Highway  Law, 
People  ex  rel.  v.  Nash,  60  Hun,  582,  15  Supp.  29;  People  ex  rel. 
V.  Moore,  60  Hun,  586,  15  Supp.  504,  affirmed,  129  N.  Y.  639.  It 
seems  that  certiorari  will  not  lie  to  review  the  action  of  a  board 
of  health  in  ordering  the  suppression  of  a  nuisance  without  notice 
to  the  person  who  is  alleged  to  maintain  the  nuisance,  as  is  re- 
quired by  statute.  People  ex  rel.  v.  Board  of  Health  of  Seneca 
Falls,  58  Hun,  595,  12  Supp.  565.  Certiorari  not  mandamus  is 
the  proper  mode  of  reviewing  the  decision  of  a  board  of  assessors. 
People  ex  rel.  v.  Gilo7i,  56  Hun,  641,  9  Supp.  212,  affirmed,  58 
Hun,  610,  12  Supp.  629  ;  but  certiorari  will  not  lie  to  review 
an  assessment  roll  where  the  decision  is  not  final,  but  can 
be  reviewed  upon  appeal,  or  where  another  remedy  is  offered 
by  statute.  People  ex  rel.  m.  Gilon,  59  Hun,  623,  13  Supp.  455. 
Under  §§  2121  and  2122  of  the  Code  of  Civil  Procedure,  a  writ 
of  certiorari  which  is  brought  to  review  the  order  of  a  county 
court,  affirming  a  report  of  the  commissioners  for  laying  out  a 
highway,  on  the  ground  of  alleged  irregularities  in  the  proceedings 
which  affect  the  power  and  jurisdiction  of  the  county  court,  will 
be  dismissed  because  the  decision  of  the  county  court  may  be  re- 
viewed upon  appeal.  People  ex  rel.  R.  R.  Co.  v.  County  Court,  152 
N.  Y.  216,  reported  below,  4  App.  Div.  542. 


326  WRIT   OF   CERTIORARI. 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

On  the  same  ground,  certiorari  will  not  lie  to  review  the  order 
of  a  county  court  appointing  commissioners  to  certify  to  the  neces- 
sity of  altering  a  highway  pursuant  to  §  84  of  the  Highway  Law. 
The  word  "  appeal  "  as  used  in  §  2122  of  the  Code  of  Civil  Pro- 
cedure is  used  in  its  broad  sense,  signifying  a  removal  of  a  cause 
from  a  court  of  inferior  to  one  of  superior  jurisdiction.  People 
ex  rcl.  Hanford  v.  Thayer,  88  Hun,  139,  68  St.  Rep.  280.  As 
the  order  made  by  a  county  judge  upon  the  return  of  a  writ  of 
habeas  corpus  discharging  the  relator  therein  from  imprison- 
ment, can  only  be  reviewed  by  an  appeal  therefrom,  such  order 
cannot  be  reviewed  by  certiorari  owing  to  the  restriction  of  §  21 21, 
Code  Civil  Procedure.  People  ex  rcl.  Cattle  v.  Tucker,  16  Civ. 
Pro.  128,  3  Supp.  793.  K%  certiorari  zzxinot  issue  under  §  2121, 
Code  Civ.  Pro.,  to  review  the  determination  made  in  an  action 
or  special  proceeding  by  a  court  of  record  or  a  judge  thereof, 
reference  is  made  to  §  2,  Code  Civil  Procedure,  which  enumerates 
the  courts  of  record.  Reference  is  also  made  to  §§  1356  and 
1357,  Code  of  Civil  Procedure,  providing  for  appeals  from  a  deter- 
mination in  special  proceedings. 

Where  police  commissioners  accept  the  voluntary  resignation  of 
a  police  officer  and  proceedings  have  not  been  instituted  by  them 
for  his  removal,  their  action  cannot  be  inquired  into  on  certiorari. 
People  ex  rcl.  Goodwin  v.  Martin,  10  Supp.  512,  32  St.  Rep.  543 ; 
see  S.  C.  on  second  appeal  66  Hun,  88,  49  St.  Rep.  736,  also  63  St. 
Rep.  295.  Certiorari  lies  to  review  a  decision  of  the  comptroller  ' 
denying  petition  of  a  domestic  corporation  for  a  revision  and  read- 
justment of  the  accounts  for  taxes  against  it,  although  under  the 
statute  the  relator  had  an  appeal  from  such  determination  of  the 
comptroller  by  statute  ;  such  provision  for  appeal  does  not  apply  to 
a  case  where  the  corporation  was  not  subject  to  any  tax  whatever 
and  where  by  amendment  to  the  original  act  an  express  provision 
is  made  for  review  by  certiorari  of  the  action  of  the  comptroller. 
People  ex  rel.  B.  E.  M.  Co.  v.  Wemple,  129  N.  Y.  543  ;  compare 
People  ex  rel.  Edison  E.  L.  Co.  v.  Wemple,  61  Hun,  60.  39  St.  Rep. 
605  ;  also  People  ex  rel.  Southern  Cotton  Oil  Co.  v.  Wemple,  61  Hun, 
83,  15  Supp.  446,  39  St.  Rep.  738,  131  N.  Y.  64 ;  People  ex  rel. 
Edison  E.  I.  Co.  v.  Wemple,  11  Supp.  246,  33  St.  Rep.  29;  People 
ex  rel.  American  Contract  ini;^  and  Dredging  Co.  v.  Wemple,  60  Hun, 
232,  14  Supp.  859,  38  St.  Rep.  22. 

The  owner  of  lands  sold  for  taxes  has  no  right  to  review  by 


WRIT   OF   CERTIORARI.  327 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

certiorari  the  determination  of  the  comptroller  under  §  83,  chapter 
427,  Laws  of  1855,  which  authorized  the  comptroller,  where  he  shall 
discover  that  a  sale  of  land  for  taxes  was  invalid  or  ineffectual,  to 
cancel  such  sale  and  refund  the  purchase  money.  Such  act  was 
intended  only  to  relieve  the  purchaser  from  the  consequences 
of  a  defective  tax  title.  Therefore  no  right  of  the  owner  was 
finally  determined  thereby,  nor  was  he  a  person  aggrieved  by  the 
decision  within  the  meaning  of  §§  2122  and  2127,  Code  Civil  Pro- 
cedure. People  ex  rel.  Wright  v.  Chapin,  104  N.  Y.  369,  8  St. 
Rep.  722.  Where  objection  was  made  to  the  writ  of  certiorari 
on  the  grounds  that  the  relator  had  the  right  to  appeal  from  a 
decision  of  the  commissioners  of  highways  laying  out  a  road,  it 
was  held  that  the  writ  was  properly  granted,  as  the  proceedings 
leading  up  to  the  order  of  the  commissioners  and  the  determination 
evidenced  thereby  could  not  "  be  adequately  reviewed  by  an 
appeal  to  a  court  or  to  some  other  body  or  officers,"  there  being 
in  this  case  substantial  irregularities  in  the  preliminary  proceedings 
laying  out  such  highway.  People  ex  rel.  Scrafford  v.  Stedman,  57 
Hun,  280,  32  St.  Rep.  649.  Certiorari  will  not  lie  to  review  the 
action  of  a  board  of  assessors  in  levying  an  assessment  for  im- 
provements because  there  is  not  a  final  determination  of  the 
objections  raised  thereon  until  they  are  considered  by  the  board 
of  revision,  and  also  because  the  Consolidation  Act  provides  other 
remedies  to  which  relator  should  resort.  People  ex  rel.  Stevenson  v. 
6^z7(?«,  36  St.  Rep.  1004,13  Supp.  455.  Where  the  removal  of  a 
police  officer  was  reversed  on  certiorari,  on  the  ground  of  an 
erroneous  refusal  to  admit  testimony,  the  relator  cannot  object 
under  subdivision  3  of  §  2122,  Code  Civil  Procedure,  to  a  rehearing 
before  the  commissioners,  on  the  ground  that  he  is  thereby  tried  a 
second  time  for  the  same  offence.  People  ex  rel.  McConnick  v. 
McClavc,  29  St.  Rep.  368. 

Under  subdivision  2  of  §  2122,  Code  Civil  Procedure,  which 
prohibits  the  writ  where  a  determination  can  be  adequately  re- 
viewed by  an  appeal  to  a  court  or  to  some  other  body  or  officer, 
a  decision  of  canal  appraisers  denying  a  claim  for  damages  will  not 
be  reviewed  by  certiorari ;  and  in  any  event  the  writ  will  not  lie 
while  an  appeal  taken  by  the  relator  is  pending  and  undecided. 
People  ex  rel.  Beiicdict  v.  Dennison,  28  Hun,  328.  The  equaliza- 
tion by  the  board  of  supervisors  of  assessors'  valuation  among 
several    towns   cannot    be   reviewed  by   certiorari  because    the 


328  WRIT    OF    CERTIORARI. 

Art.  2.     When  the  W^rit  Issues,  and  to  What  Body  or  Officer. 

remedy  is  by  an  appeal  to  the  State  assessors.  People  ex  rel.  Hill 
V.  Supervisors,  49  Hun,  476,  2  Supp.  557.  The  action  of  the  rail- 
road commissioners  in  refusing  to  grant  a  certificate  of  public 
convenience  and  necessity  under  §  59  of  the  Railroad  Law,  as 
amended,  cannot  be  reviewed  by  certiorari,  as  the  refusal  to  grant 
such  certificate  cannot  be  said  to  finally  determine  the  rights  of 
the  parties  and  because  adequate  provision  is  made  for  the  re- 
view of  such  refusal.  People  ex  rel.  Depew  R.  Co.  v.  Board  of 
Railroad  Coniinissioners,  4  App.  Div.  265.  The  decision  of  a 
county  court  confirming  the  report  of  commissioners  appointed 
to  lay  out  a  highway  is  final  and  cannot  be  reviewed  by  certiorari, 
and  even  if  such  decision  were  not  final  the  writ  would  not  lie 
because  the  relators  have  their  remedy  by  appeal.  Matter  of 
Taylor  and  Allen,  8  App.  Div.  395.  While  under  sub.  i  of  section 
2122  certiorari  c?i\\noX.  issue  where  the  determination  of  the  in- 
ferior body  is  not  final,  it  has  been  held  that  where  a  board  of 
auditors  reject  a  claim  for  insuf^ciency  of  proof  as  to  its  nature 
and  extent,  but  allow  a  smaller  amount;  such  partial  rejection 
is  a  final  determination  on  the  merits  which  may  be  reviewed 
by  certiorari.  People  ex  rel.  v.  Board  of  Auditors  of  Hannibal, 
65  Hun,  414,  20  Supp.  165.  When,  however,  in  the  case  above 
stated  the  claimant  failed  to  attend  and  itemize  his  claim  before 
the  board  at  an  adjourned  day,  of  which  he  had  notice,  such 
claimant  is  not  entitled  upon  certiorari  to  an  order  awarding 
him  the  total  amount  of  the  claim.  People  ex  rel.  v.  Board  of 
Auditors  of  Hannibal,  65  Hun,  414,  20  Supp.  165.  Certiorari 
will  not  lie  to  review  the  action  of  the  Governor,  as  com- 
mander-in-chief, in  disbanding  a  company  of  militia  under  the 
Military  Code,  People  ex  rel.  v.  Hill,  59  Hun,  624,  13 -Supp.  186- 
637,  afifirmed,  126  N.  Y.  497.  As  by  sub.  3  of  §  2122,  Code  Civ. 
Pro.,  the  writ  will  not  lie  "  where  the  body  or  officer  making  the 
determination  is  expressly  authorized  by  statute  to  rehear  the 
matter,"  it  follows  that  a  .settlement  of  an  account  for  taxes 
against  a  corporation  by  the  comptroller,  under  Laws  1889,  chap. 
463,  will  not  be  reviewed  as  his  decision  may  be  revised  and  read- 
ju.sted  by  him.  People  ex  rel.  v.  Wemple,  57  Hun,  594,  1 1  Supp.  246. 
The  writ  under  the  former  statute  ran  to  assessors  to  bring  up 
for  review  their  action  in  assessing  property,  and  numerous  deci- 
sions were  made,  and  much  discussion  had  as  to  how  far  the  action 
of  assessors  was  reviewable  by  the  writ.     This  question  has   lost 


WRIT   OF   CERTIORARI.  329 


Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

its  practical  importance  since  the  enactment  of  chapter  269  of 
laws  of  1880,  providing  for  the  review  of  the  action  of  assessors, 
which  was  re-enacted  in  Tax  Law,  §  250,  etc.,  which  is  treated 
under  a  separate  head.  Some  of  the  decisions  are,  however,  given, 
bearing  on  the  right  to  review  assessments.  One  of  the  most  im- 
portant previous  to  the  statute  is  Swift  v.  City  of  Poughkcepsie,  37 
N.  Y.  511.  The  following  are  also  on  the  same  point:  Susque- 
hanna Bank  v.  Supervisors,  25  N.  Y.  312  ;  People  v.  Assessors  of 
Albany,  40  id.  154  ;  People  v.  Trustees  of  Ogdensburg,  48  id.  390. 
The  proceedings  of  commissioners  of  taxes  and  assessments,  being 
judicial  in  their  nature,  can  only  be  reviewed  or  questioned  in  the 
courts  by  writ  of  certiorari  prosecuted  by  the  party  aggrieved, 
and  if  parties  fail  to  appear  at  the  proper  time  and  ask  the  reduc- 
tion for  cause  shown,  they  are  subsequently  concluded  from  re- 
viewing the  action  of  the  commissioners  by  certiorari.  People  v. 
Wall  Street  Bank,  39  Hun,  525.  But  that  question  will  not  be 
passed  upon  an  appeal  if  not  raised  below.  People  v.  Hicks,  2 
State  Rep.  294. 

Since  the  act  of  1880  expressly  allows  evidence  to  be  taken  by 
the  court  as  to  the  facts  on  which  the  assessors  have  based  their 
judgment,  and  that  statute  is  now  uniformly  used  on  such  review, 
much  of  the  discussion  as  to  the  questions  to  be  reviewed  is 
necessarily  superseded  by  the  enactment.  The  writ  lies  to  review 
acts  of  boards  of  supervisors,  which  are  judicial  in  their  nature  ; 
also  to  review  and  correct  items  illegally  included  in  a  tax  levy  and 
warrant.  People  v.  Supervisors  of  Westchester,  57  Barb.  -"^"jj.  It 
is  proper  when  supervisors  reject,  as  not  just  and  legal,  a  claim 
which  the  legislature  has  declared  to  be  legal,  and  has  directed 
them  to  audit  and  allow.  People  v.  Supervisors,  51  N.  Y.  442.  It 
was  granted  in  People  ex  rel.  Burhansv.  Supervisors  of  Ulster,  32 
Hun,  607,  to  review  the  action  of  a  board  of  supervisors  in  fixing 
the  amount  of  costs  on  an  equalization  appeal  on  behalf  of  re- 
spondents under  the  statute.  But  in  passing  resolutions  to  raise 
money  supervisors  do  not  act  judicially,  and  certiorari  does  not 
lie.  People  v.  Supervisors,  43  Barb.  332.  It  was  granted  to  canal 
appraisers,  where  they  appraised  damages  without  notice  to  the 
owner,  and  without  giving  him  an  opportunity  to  be  heard  or  pro- 
duce witnesses.  Fonda  v.  Canal  Appraisers,  i  Wend.  288.  See 
People  V.  Dennison,  28  Hun,  328.  The  proceedings  of  a  board  of 
justices  of  the  peace  of  a  town  have  been  reviewed  by  certiorari. 


330  WRIT   OF   CERTIORARI. 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

Wildy  V.  Washburn,  i6  Johns.  49.  The  writ  was  allowed  against 
the  comptroller  to  review  his  decision  on  hearing  of  an  appeal  from 
equalization  by  a  board  of  supervisors.  People  v.  HillJiouse,  i  Lans. 
87.  Relator,  as  owner  of  lands  which  had  been  sold  for  taxes, 
petitioned  the  comptroller  to  cancel  such  sale,  that  any  convey- 
ance made  thereunder  be  set  aside,  which  was  denied,  and  the 
denial  afifirmed  at  General  Term.  In  Court  of  Appeals,  held,  that 
relator  was  not  a  person  aggrieved  within  the  meaning  of  the 
Code.  People  exrel.v.  Chapin,  23  Week.  Dig.  410,  dismissing 
appeal  from  38  Hun,  272.  It  has  also  run  to  board  of  commis- 
sioners of  pilots  to  review  their  action  in  irregularly  revoking 
licenses  of  pilots.  People  v.  Commissioners,  54  Barb.  145.  Cer- 
tiorari has  been  granted  to  review  the  determination  of  the  canal 
board ;  the  fact  that  the  board,  after  the  granting  of  the  writ, 
rescinded  its  decision  does  not  affect  relator's  rights.  People  v. 
Canal  Board,  7  Lans.  220.  The  writ  lies  to  referees  in  highway 
cases  as  to  questions  of  jurisdiction  and  regularity.  If  regular, 
the  decision  below  on  the  merits  is  final.  People  v.  Van  Alstyne, 
32  Barb.  131.  The  proceedings  of  the  board  of  metropolitan 
police  in  removing  a  policeman  are  reviewable  by  certiorari. 
People  V.  Board  of  Poliec,  3  Abb.  Dec.  488  ;  People  v.  Board  of 
Police,  26  Barb.  481;  People  v.  Board  of  Police,  43  How.  385. 
Also,  of  the  fire  department  of  Brooklyn,  Pennie  v.  City  of  Brook- 
lyn, 97  N.  Y.  654;  Smith  v.  Commissioners,  etc.,  3  State  Rep.  615. 
A  proceeding  to  remove  the  head  of  a  department  under  the 
charter  of  the  city  of  New  York  is  judicial,  and,  therefore,  subject 
to  review  by  certiorari.  People  v.  Nichols,  79  N.  Y.  582.  The 
decision  of  the  superintendent  of  insurance,  fixing  the  compen- 
sation of  a  receiver,  cannot  be  reviewed  by  certiorari.  People  v. 
Fairman,  17  Week.  Dig.  168.  The  decision  of  assessors  of  a  town 
under  Town-Bonding  Act  upon  the  question  whether  the  required 
number  of  taxpayers  have  given  their  consent  to  the  issuing  of 
bonds  to  a  railroad  company  may  be  reviewed  by  certiorari. 
People  V.  Morgan,  65  Barb.  473.  The  writ  also  ran  to  a  county 
clerk  or  county  judge  under  the  Midland  Railroad  Bonding  Act 
for  the  same  purpose.  People  v.  Deyo,  2  T.  &  C.  142  ;  People  v. 
Wagner,  7  Lans.  467.  The  writ  lies  to  review  the  action  of  the 
board  of  health  in  refusing  to  register  unrecorded  births.  Ex 
parte  Lauterjung,  16  J.  &  S.  308.  The  writ  lies  to  review  pro- 
ceedings of   a    court-martial    convicting   the  relator.      People  v. 


WRIT  OF  CERTIORARI.  331 


Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 


Townsend,  lO  Abb.  N.  C.  69;  Matter  of  Brackett,  27  Hun,  605. 
But  the  decision  of   a  court-martial   cannot   be  reviewed  on  cer- 
tiorari if  the  court  had   jurisdiction  of  the  subject-matter  and  of 
the  person  of  the  accused,  and  if  there  was  any  evidence  in  sup- 
port of  the  charges  and  specifications.     People  ex  rel.  v.  Rand, 
41  Hun,  529,  5  State  Rep.  31.       The   writ  was  held  to  lie  to  re- 
view an  adjudication  of  contempt  though  the  warrant  of  com- 
mitment had  not  been  issued,  the  order  for  the  warrant  being 
regarded  as  a  final  adjudication.     People  v.  Donahue,  22  Hun,  470. 
The  ordinance  of  a  common  council  directing  certain  work  to  be 
done    is  final    and  reviewable    by  certiorari.     People  v.  Common 
Council,  65  Barb.  9.     The  writ  will  not  lie  to   review  an  unlawful 
decision  of  a    county  board  of  canvassers  by  which  a  party  in- 
trudes   in    office.     This  is  a   ministerial  and  not  a  judicial  act. 
People  V.  Van  Slykc,  4  Cow.  297.      Nor  to  the  trustees  of  a  school 
district  to   review   their  proceedings.     Storm  v.   Odcll,  2  Wend. 
287  :  Saratoga  &  n.  R.  R.  Co.  v.  McCoy,  5  How.  378  ;   see  Easton 
V.  Callcnder,   1 1   Wend.  90.     Certiorori  to  review  the   action    of 
canal  appraisers  will  not  lie  pending  an  appeal  to  the  canal  board. 
People  v.  Dennison,  28  Hun,  328.     When  the  action  of  a  board  of 
supervisors  is  legislative  or  ministerial  in  its  character  it  cannot 
be  reviewed  on  certiorari.     People  v.   Supervisors,  25  Hun,  1 3 1. 
The  action  of  a  board  of   excise  denying  the  application  to  re- 
voke a  license  on  the  ground  that  the  licensee  had  violated  the 
provisions  of  the  statute,  is  not   reviewable  by  certiorari  if  the 
board  has  not  exceeded  its  jurisdiction  nor  proceeded  otherwise 
than  according  to  law.     People  v.  Board  of  Excise,  24  Hun,  195. 
Where  a  board  of  commissioners  had  jurisdiction  and  there  was 
evidence  legitimately  tending  to  support  its  decision,  and  no  rule 
of  law  was  violated,  its   determination   could  not  be  reviewed  on 
a  common-law  certiorari.     People  v.  Fire  Commissioners,  82  N.  Y. 
358.     See  Pe7i7iie  v.  City  of  Brooklyn,  97  N.    Y.  654 ;  Smith  v. 
Commissioners,  3  State  Rep.  615.     The  writ  does  not  lie  to  review 
the  report  of  the  commissioners  awarding  damages  occasioned 
by  changing  grade  of  a  village  street.     The  remedy  is  by  appeal 
from    the    final  order    of  confirmation.     People  v.  Cobb,  14  Abb. 
N.  C.  493.      Certiorari  is  the  proper  remedy  to  review  irregular- 
ities in  a  village   election.     So  held  in  Dows  v.  Village  of  Irving- 
ton,  66  How.  93.     The  writ  lies  to  review  determination  of  board 
■of  supervisors  acting  as  a  board  of  audit.     People   v.  Supervisors 


332  WRIT   OF   CERTIORARI. 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Ofl5cer. 

of  Madison,  51  N.  Y.  442.  Where  a  statute  fixed  the  propor- 
tion of  certain  expenses  which  should  be  borne  by  certain 
villages,  and  by  the  county  respectively,  and  the  police  com- 
missioners of  the  villages,  disregarding  the  statute,  rendered  an 
account  of  such  expenses,  which  charged  the  whole  amount  to 
the  county,  which  amount  defendants  were  proceeding  to  levy, — 
held,  that  this  was  a  grievance  which  could  be  reviewed  on  the 
relation  of  a  taxpayer,  but  he  was  without  remedy  where  it  ap- 
peared that  before  argument  the  tax  was  levied  and  in  part 
paid.  The  writ  does  not  operate  per  se  as  a  stay  of  proceedings. 
People  V.  Supervisors,  23  Week.  Dig.  568.  Also  to  review  sum- 
mary proceedings  instituted  by  the  holder  of  a  tax  title  in  the 
city  of  Brooklyn.  People  v.  Andrews,  52  N.  Y.  445.  Writ  will 
not  lie  to  village  to  review  alleged  irregularities  in  proceedings 
by  which  it  is  claimed  to  have  been  incorporated.  People  v. 
Nelliston,  18  Hun,  175.  The  writ  will  lie  to  officer  removing 
head  of  a  department  under  New  York  City  charter,  as  it  is  a 
judicial  act.  People  v.  Nichols,  58  How.  200 ;  People  v.  Mayor, 
19  Hun,  441  ;  People  v.  Cooper,  21  id.  517.  Previous  to  the  Code 
of  Civil  Procedure  certiorari  lay  to  review  summary  proceedings 
before  a  justice.  People  v.  Perry,  16  Hun,  461  (1879).  A  cer- 
tiorari will  not  lie  to  review  proceedings  for  laying  out  a  high- 
way pending  an  appeal  to  the  county  judge.  People  v.  Wallace, 
2  Hun,  152  ;  see  Buckley  v.  Drake,  41  id.  384.  Where  the  writ 
is  directed  to  a  board,  as  that  of  public  works  in  the  city  of  New 
York,  it  should  be  to  the  members  by  their  individual  names.. 
People  V.  Connnissioners,  97  N.  Y.  37. 

Certiorari  lies  to  review  a  municipal  assessment  for  a  local 
improvement  where  there  has  been  an  essential  departure  from 
the  statute  in  principle  of  assessment.  Leroy  v.  Mayor  of  Ncm 
York,  20  Johns.  430;  Starr  v.  Trustees  of  Rochester,  6  Wend. 
564;  People  V.  City  of  Rochester,  21  Barb.  656;  see  Ex 
parte  Mayor  of  Albany,  23  Wend.  277.  To  vacate  an  assess- 
ment on  the  ground  that  the  assessors  erred  in  their  determina- 
tion as  to  what  property  was  benefited,  the  remedy  is  by  cer- 
tiorari, not  by  suit  in  equity.  But  otherwise  if  the  assessors 
proceed  on  a  wrong  rule  of  law.  Kennedy  v.  City  of  Troy,  19 
Alb.  L.  J.  498,  J"]  N.  Y.  443.  Certiorari  is  the  proper  remedy  to 
review  the  proceedings  of  municipal  bodies.  People  v.  City  of 
Rochester,   21    Barb.   656;  Heyivood  v.  City  of  Buffalo,  14  N.  Y. 


WRIT   OF   CERTIORARI,  333 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

534  ;  People  v.  City  of  Utica,  65  Barb.  9.  Proceedings  for  grading 
and  opening  street  may  be  reviewed  by  certiorari.  People  v.  City 
of  Brooklyn,  8  Hun,  56:  Boiiton  v.  Brooklyn,  2  Wend.  395.  In 
order,  however,  to  warrant  interference  with  a  municipal  cor- 
poration by  certiorari,  the  act  must  be  plainly  judicial.  A  cer- 
tiorari does  not  lie  to  review  a  corporate  resolution  appropriating 
money  for  a  public  square.  Matter  of  Aft.  Morris  Square,  2 
Hill,  14. 

It  has  been  granted  to  review  assessment  for  opening  a  sewer 
for  paving  streets,  for  grading  avenues,  for  the  construction  of  a 
bridge.  People  v.  Mayor  of  Brooklyn,  9  Barb.  535  ;  People  v.  City 
of  Brooklyn,  49  id.  136;  People  v.  City  of  Rochester,  21  id.  656; 
Boiiton  v.  President,  etc.,  2  Wend.  395  ;  Leroy  v.  Mayor,  20  Johns. 
430  ;  Ex  parte  Mayor  of  Albany,  23  Wend.  277  ;  People  v.  City  of 
Utica,  65  Barb.  9.  It  is  held  in  People  v.  Board  of  Assessor Sy  2 
Hun,  583,  that  the  writ  will  be  granted  only  to  review  assess- 
ments on  special  cause  shown,  and  will  be  superseded  if  it 
appears  the  remedy  sought  is  against  justice  and  convenience. 
Also,  in  the  Matter  of  Eightieth  Street,  17  Abb.  324,  that  the 
writ  should  be  refused  in  case  of  a  local  improvement  when 
there  is  another  adequate  remedy.  It  is  held  in  People  v.  Mc- 
Donald, 4  Hun,  187,  affirmed,  69  N.  Y.  362,  that  certiorari 
should  not  be  granted  on  the  application  of  two  or  three  out  of 
a  large  number  of  persons  interested  in  like  manner  in  assess- 
ments for  local  purposes,  especially  where  adequate  relief  is 
afforded  in  proceedings  at  law,  and  this  is  in  conformity  with  the 
earlier  decisions.  In  the  Matter  of  Mt.  Morris  Square,  2  Hill, 
14,  that  in  general  the  court  ought  not  to  allow  the  writ  where 
assessments  of  taxes  or  awards  of  damages  are  in  question,  which 
affect  any  considerable  number  of  persons.  It  is  said  in  that 
case,  that  if  there  be  a  want  of  jurisdiction  even  in  the  judicial 
act  sought  to  be  reviewed  ;  or,  in  other  words,  if  there  be  any 
excess  of  legal  power  by  which  a  person's  rights  may  be  injuri- 
ously affected,  an  action  lies,  and  it  is  much  better  that  he  should 
be  put  to  this  remedy  than  that  the  whole  proceeding  should  be 
arrested,  and,  perhap's,  finally  reversed  for  such  a  cause. 

It  is  further  held  that  the  writ  will  not  lie  to  review  the  pro- 
ceedings of  any  person,  officer,  or  body,  acting  under  a  naked 
power  conferred  by  law  to  take  private  property  for  public  use ; 
and  in  this  respect   it  is  followed  in  People  v.  Nearing,  27  N.  Y. 


334  WRIT   OF   CERTIORARI. 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

306,  holding  that  where  property  is  taken  for  public  use  without 
making  compensation  to  the  owner  by  reason  of  the  fact  that  his 
case  was  not  provided  for  by  the  statute  directing  the  assessment 
of  compensation,  the  remedy  is  not  by  certiorari  to  review  the 
commissioners'  action,  but  by  action  for  trespass.  The  writ  will 
not,  according  to  the  foregoing  authorities,  be  allowed  for  the 
purpose  of  reviewing  ofificial  proceedings  of  a  municipality  of 
either  a  legislative,  executive,  or  ministerial  character.  Nor  was 
it  granted  to  review  an  assessment  after  great  delay,  where  the 
work  has  been  prosecuted  and  tax  partially  collected.  Elmen- 
dorf  V.  Mayor,  25  Wend.  693  ;  People  v.  Mayor,  2  Hill,  9.  Cer- 
tiorari will  lie  to  a  board  of  State  ofificers  to  review  their  decision 
apportioning  the  expenses  of  board  of  railroad  commissioners, 
under  Laws  of  1882,  as  they  act  in  a  quasi-judicial  character. 
People  V.  Chapin,  42  Hun,  239.  As  to  the  present  limitation  of 
time  within  which  the  writ  will  be  granted,  see  §  2125.  The 
summary  remedy  for  relief  from  assessment  by  petition  was  held, 
in  Matter  of  Mead,  74  N.  Y.  216,  to  be  statutory  and  independent 
of  any  right  to  relief  to  which  a  party  might  be  entitled  by  a 
writ  of  certiorari.  It  was  broadly  held  in  Western  R.  R.  Co.  v. 
Nolan,  48  N.  Y.  513,  and  in  People  v.  Supervisors  of  Westchester, 
57  Barb.  383,  that  an  illegal  assessment  may  be  reversed  by  cer- 
tiorari. But  it  will  not  lie  to  review  an  assessment  after  the  roll 
has  been  delivered  to  the  supervisors  and  the  tax  collected. 
People  V.  The  Commissioners  of  Taxes,  43  Barb.  494 ;  People  v. 
Reddy^  id.  539;  People  v.  Fredericks,  48  id.  173  ;  People  v.  Super- 
visors of  Albany,  23  Week.  Dig.  568.  A  writ  of  certiorari  to 
assessors  to  compel  the  correction  of  an  assessment-roll  is  in- 
effectual, when  such  roll  has  passed  from  their  possession  and 
control  to  the  board  of  supervisors  before  the  writ  was  issued, 
even  though  it  was  directed  to  the  board  of  supervisors  as  well. 
People  V.  Tompkins,  40  Hun,  228.  A  writ  of  certiorari  is  an  ap- 
propriate remedy  to  review  the  proceedings  of  a  municipal  cor- 
poration in  procuring  a  local  improvement.  Hanley  v.  NeziJ 
York,  16  How.  228.  And  that  an  injunction  is  not  the  proper 
remedy  is  held  in  same  case,  and  Mace  v.  Trtistees  of  Ncwbiirgh, 
15  How.  161. 

Certiorari  lies  to  review  summary  proceedings  for  forcible 
entry  and  detainer  pending  a  traverse  of  the  inquisition.  People 
V.  Covin,  20  Hun,  460.     Under  the  statute   relating  to   sales  of 


WRIT   OF    CERTIORARI,  335 

Art.  2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

land  for  taxes,  the  comptroller  can  be  applied  to  to  set  aside  an 
invalid  sale,  and  his  action  reversed  by  certiorari  or  mandamus. 
Clark  V,  Davenport,  95  N.  Y.  478.  The  remedy  of  a  party  be- 
lieving himself  aggrieved  by  a  decision  of  the  comptroller  deny- 
ing an  application  for  the  cancellation  of  a  sale  for  taxes  is  by 
certiorari  and  not  by  mandamus.  People  v.  Chapin,  39  Hun,  230. 
See  People  v.  Chapin,  23  Week.  Dig.  410.  As  to  the  review  of 
illegal  assessment  by  the  writ,  see  chapter  269,  Laws  of  1880, 
subsequently  treated. 

Where  a  private  individual  illegally  assumes  to  act  as  justice  of 
the  peace,  his  judgment  requires  no  reversal  on  certiorari  being 
absolutely  void  and  the  act  of  a  mere  trespasser.  People  ex  rel.  v. 
Moore,  48  Hun,  619,  i  Supp.  405,  Where  the  action  of  a  board 
created  by  statute  is  not  judicial,  it  is  not  reviewable  on  certiorari. 
Thus  where  the  Laws  1892,  chap.  331,  as  amended,  required  the 
comptroller  of  the  city  of  New  York  to  pay  debts  incurred  by  a 
committee,  after  the  same  shall  have  been  audited  by  the  board  of 
estimate,  it  was  held  that  the  action  of  the  board  as  to  the  debt 
was  not  reviewable,  not  being  judicial.  People  ex  rel.  v.  Gilroy,  72 
Hun,  6'i,y,  25  Supp.  878  ;  see,  also,  Lannigan  exrelv.  Mayor,  etc., 
70  N.  Y.  456.  Certiorari  will  not  lie  to  review  the  action  of  an 
association  in  expelling  a  member,  where  there  is  a  remedy  by 
appeal.  People  ex  rel.  v.  Medical  Society  of  Dutchess,  84  Hun,  448, 
32  Supp.  415  ;  thus  relief  from  the  action  of  a  person  assuming  to 
act  as  justice  of  the  peace  should  be  had  on  appeal  from  justices* 
court  under  the  Code.  People  v.  Moore,  48  Hun,  619,  i  Supp. 
405.  Certiorari  will  not  lie  to  review  the  commitment  of  a  magis- 
trate, as  the  remedy  is  by  appeal,  the  writs  of  certiorari  and  error 
in  special  proceedings  of  a  criminal  nature  being  abolished  by 
§  5 1 5,  Code  Criminal  Procedure,  People  ex  rel.  v.  Murray,  62  Hun, 
30,  16  Supp.  325. 

Where  a  board  of  supervisors  has  considered  an  account  on  its 
merits  and  in  good  faith  rendered  a  decision  as  to  the  amount  which 
should  be  allowed,  mandamus  cannot  issue  to  compel  another 
audit,  but  the  decision  may  be  corrected  or  reversed  by  certiorari. 
People  ex  rel.  O' Mara  v.  Supervisors  of  Cayuga  County,  40  St.  Rep. 
239,  16  Supp.  256.  It  seems  that  although  the  allowance  of  cer- 
tiorari is  discretionary,  that  discretion  is  not  arbitrary,  and  the  writ 
will  always  issue  where  there  is  a  proper  subject  for  review,  and 
therefore  certiorari  is  considered  to  be  an  ample  and  sufBcient 


336  WRIT   OF   CERTIORARI. 


Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

remedy.  U.  L.  T.  Co.  v.  Grant,  137  N.  Y.  12.  But  it  seems  that 
though  the  action  of  a  common  council,  when  illegal  and  without 
authority,  may  be  reviewed  by  certiorari,  yet  such  review  and  re- 
versal by  certiorari  is  not  a  full  and  adequate  remedy  for  the  illegal 
and  improper  expulsion  of  one  from  public  office.  Armitage  v. 
Fisher,  4  Misc.  326,  56  St.  Rep.  385.  If  it  concerns  an  erroneous 
decision  at  law,  the  relator's  remedy,  if  he  have  any,  is  by  certiorari 
and  not  by  mandamus.  People  ex  rcl.  Myers  v.  Barnes,  a^  Hun, 
576.  On  certiorari  by  the  forest  commission  to  review  a  cancel- 
lation of  a  tax  sale  and  a  determination  of  the  comptroller  refusing 
to  set  aside  such  cancellation  as  having  been  made  without 
authority,  the  court  has  power  to  set  aside  such  cancellation  on 
such  terms  with  respect  to  the  restitution  of  the  moneys  received 
by  the  State  thereon  as  justice  requires.  People  ex  rel.  Forest  Com- 
missioners V.  Campbell,  156  N.  Y.  64,  50  N.  E.  Rep.  417,  revers- 
ing, 22  App.  Div.  170,  48  Supp.  183,  82  St.  Rep.  183.  Where  a  bill 
against  a  county  for  services  is  not  based  on  any  agreement,  ex- 
press or  implied,  but  the  measure  of  compensation  is  the  reason- 
able value  of  the  services,  the  board  of  supervisors  have  a  right  to 
exercise  their  judgment  and  discretion,  and  their  determination 
will  not  be  reviewed  on  certiorari  unless  it  appears  to  have  been 
clearly  erroneous  and  against  the  weight  of  the  testimony  upon 
which  they  acted.  Matter  of  Lane  hart,  32  App.  Div.  2,  52  Supp.  671, 
86  St.  Rep.  671.  The  determination  by  the  board  of  railroad  com- 
missioners as  to  a  change  of  motive  power  is  a  judicial  one,  and  is 
reviewable  by  certiorari.  People  ex  rel.  Babylon  R.  R.  Co.  v.  Bd. 
Railroad  Coj)imrs.,  32  App.  Div.  179,  52  Supp.  908,  86  St.  Rep.  908. 
The  removal  by  the  State  superintendent  of  public  instruction  of 
a  member  of  the  board  of  education  of  a  union  free  school  district 
is  reviewable  u^orx  certiorari,  and  the  decision  of  the  Special  Term 
upon  the  application  for  the  writ  is  not  final.  Matter  of  Light, 
30  App.  Div.  50,  51  Supp.  743,  85  St.  Rep.  743. 

Acts  of  justices  of  the  peace  while  acting  in  the  position  of  in- 
spectors of  an  election  arc  merely  those  of  ministerial  officers, 
and  if  they  permit  unauthorized  persons  to  keep  the  tally  sheets 
and  declare  the  result  of  the  canvass,  and  to  aid  in  the  distribu- 
tion of  tickets,  etc.,  the  conduct  of  the  justice  is  not  a  judicial 
action  and  cannot  be  reviewed  by  a  writ  of  certiorari.  Peo.  ex 
rel.  Brooks  v.  Bush,  22  App.  Div.  363,  48  Supp.  13,  82  St.  Rep.  13, 
The  action  of  a  board  of  trustees  of  a  village  in   fixing,  under 


WRIT    OF    CERTIORARI.  337 

Art.   2.     When  the  Writ  Issues,  and  to  What  Body  or  Officer. 

ch.  430,  Laws,  1895,  a  "  fair  reasonable  compensation  "  for  the 
services  of  a  member  of  the  village  board  of  health,  is  adminis- 
trative or  legislative  in  its  nature,  and  consequently  cannot  be 
reviewed  by  a  writ  of  certiorari.  Pco.  ex  rel.  SniitJi  v.  Trustees  of 
Village  of  Haverstrazv,  23  App.  Div.  231,  48  Supp.  740,  82  St. 
Rep,  740. 

A  proceeding  under  the  general  Municipal  Law  by  resident 
freeholders  of  a  village,  who  claim  that  its  of^cers  are  unlawfully 
expending  moneys  raised  by  taxation  and  ask  investigation,  is  a 
special  proceeding,  and  the  decision  of  the  justice  is  not  review- 
able by  a  writ  of  certiorari.  Pco.  ex  rel.  Giiybord  v.  Kellogg,  22 
App.  Div.  176,  47  Supp.  1023,  81  St.  Rep.  1023.  The  comptroller 
of  the  State  of  New  York  has  no  power,  upon  application  of 
the  owner  of  lands  sold  for  taxes,  to  cancel  the  sale  upon 
the  ground  of  its  illegality,  even  where  the  St«te  is  a  pur- 
chaser ;  yet  where  the  comptroller  requires  as  a  condition  for 
vacating  such  a  sale  the  payment  by  the  owner  of  all  the  taxes  in 
arrears,  and  the  treasurer  receives  and  retains  for  the  State's  use 
the  moneys  so  paid,  the  cancellation  of  the  same  should  be  re- 
viewed in  a  suit  in  equity,  and  not  by  certiorari.  Pco.  ex  rel. 
Forest  Commrs.  v.  Campbell,  22  App,  Div.  170,  48  Supp.  183,  82 
St.  Rep.  183.  The  decision  of  the  superintendent  of  pnblic  instruc- 
tion in  removing  school  trustees  in  a  case  of  which  he  has  juris- 
diction is  made  final  by  statute,  and  cannot  be  reviewed  by 
certiorari.  Matter  of  Light,  21  Misc.  737,  49  Supp.  345,  83  St, 
Rep.  345.  Certiorari  is  only  available  to  review  a  determination, 
judicial  in  character,  and  as  the  functions  of  at  own  board  conduct- 
ing a  town  election  are  not  judicial,  certiorari  will  not  lie  to  review 
their  proceedings.  Where  there  is  no  allegation  in  the  petition 
of  any  judicial  action,  nor  anything  of  that  character  appearing 
in  the  return,  it  will  be  presumed  that  the  acts  performed  by  a 
town  board  are  wholly  administerial  and  therefore  not  subject  to 
review  by  certiorari.  Pco.  ex  rel.  Van  Sickelv.  Austin,  20  App, 
Div.  2. 

As  there  can  be  no  review  by  certiorari  of  an  order  which  is 
not  a  final  determination,  an  order  made  under  the  provisions  of 
the  County  Law,  Laws  1892,  chap.  636,  §§125  and  126,  by  a  jus- 
tice directing  a  person  to  kill  a  dog  found  to  be  vicious,  ma)''  not 
be  reviewed  by  certiorari,  as  such  order  is  not  a  final  determina- 
tion of  the  rights  of  the  relator.  Pco  ex  rel.  RensJiaw  v.  Gillespie, 
22 


338  WRIT   OF   CERTIORARI. 

Art.  3.     What  Court  may  Issue  Writ  and  within  What  Time. 

25  App.  Div.  93,  82  St.  Rep.  882,  48  Supp.  882.  The  action  of 
supervisors  in  passing  a  resolution  for  the  improvement  of 
town  roads  cannot  be  reviewed  on  certiorari.  Peo.  ex  rel.  Village 
of  Jamaica  \.  Supervisors  of  Queens,  131  N.  Y.  468,  43  St.  Rep. 
665,  reversing  42  St.  Rep.  22,  16  Supp.  705.  As  the  board  of 
excise  of  New  York  has  the  right  to  remove  an  inspector  of 
excise  at  its  pleasure,  its  proceedings  in  doing  so  cannot  be  re- 
viewed on  certiorari.  Peo.  ex  rel.  Lion  v.  Murray,  5  App.  Div.  288, 
39  Supp.  227  ;  nor  is  the  determination  of  a  board  of  health 
as  to  a  nuisance  reviewable  by  certiorari.  Peo.  ex  rel.  Copcutt 
v.  Board  of  Health  of  Yonkers,  140  N.  Y.  i,  55  St.  Rep.  422. 
Certiorari  lies  to  review  the  refusal  of  the  board  of  health  of  a 
city  to  register  births  of  children  under  Laws  of  1880,  ch.  295. 
Matter  of  Lauterjung,  ^%  Supr.  Ct.  308.  It  lies  to  review  the 
irregularities  in  a  village  election.  Doivs  v.  Village  of  Irvington, 
66  How.  Pr.  93.  The  writ  will  not  lie  to  review  mere  ministerial 
acts,  or  acts  resting  wholly  in  discretion.  People  ex  rel.  McCanna 
V.  Commissioners  of  Charity  of  Kings  Co.,  i  App.  Div.  I,  36  Supp. 
1002,  72  St.  Rep.  104.  If  the  court  has  acquired  jurisdiction  of 
the  subject-matter  and  parties  by  petition,  the  relator  is  entitled 
to  the  issue  of  the  writ  as  a  matter  of  right.  Matter  of  Wine- 
gar  el  v.  Komer,  5  Misc.  54,25  Supp.  48. 

ARTICLE  III. 

What  Court  may  Issue  Writ  and  within  What  Time. 
§§  2123,  2124,  2125,  2126. 

§2123.     [Am'd,  1895.]    When  issued  from  supreme  court. 

A  -writ   of  certiorari  can  be  issued  only  out  of  the  Supreme  Court,  except  in  a  case 
where  another  court  is  expressly  authorized  by  statute  to  issue  it. 
L.  1S95,  ch.  946. 

§  2124.  When  from  another  court. 

Any  court  of  record,  exercising  jurisdiction  of  an  appellate  nature,  may  issue  a  writ 
of  certiorari,  requiring  the  body  or  officer  whose  proceedings  are  under  review,  to 
make  a  return  to  the  court  issuing  the  writ,  at  a  time  and  place  fixed  by  the  court, 
and  designated  in  the  .writ,  for  the  purpose  of  supplying  any  diminution,  variance,  or 
other  defect,  in  the  record  or  other  papers,  before  the  court  issuing  the  writ,  in  any 
case  where  justice  requires  that  the  defect  should  be  supplied,  and  adequate  relief  can- 
not be  obtained  by  means  of  an  order. 

2  R.  S.  599  §  45  (2  Edm.  621)  ;  see  §  1215. 

§  2125.  Limitation  of  time  for  review. 

Subject  to  the  provisions  of  the  next  section,  a  writ  of  certiorari  to  review  a  deter- 


WRIT   OF   CERTIORARI.  339 

Art.  3.     What  Court  may  Issue  Writ  and  within  What  Time. 

mination  must  be  granted  and  served,  within  four  calendar  months  after  the  deter- 
mination to  be  reviewed  becomes  final  and  binding,  upon  the  relator,  or  the  person 
whom  he  represents,  either  in  law  or  in  fact. 

§2126.     [Am'd,  1895.]     Id.;  in  case  of  disability. 

The  appellate  division  of  the  Supreme  Court  may  grant  the  writ,  at  any  time  with- 
in twenty  months  after  the  expiration  of  the  time  limited  in  the  last  section,  where  the 
relator,  or  the  person  whom  he  represents,  was  at  the  time  when  the  determination  to 
be  reviewed  became  final  and  binding  upon  him,  either 

1.  Within  the  age  of  twenty-one  years  ;  or 

2.  Insane  ;  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  conviction  of  a  criminal 
offence,  for  a  term  less  than  for  life. 

This  provision  of  §  2125  is  new;  as  theretofore  no  limit  was 
fixed  at  common  law  within  which  a  writ  would  issue,  and  the 
practice  had  been  analogous  to  the  limitations  of  writs  of  error. 
People  V.  Mayor,  2  Hill,  9;  Elmendorf  v.  Mayor,  25  Wend.  693. 
It  was  held,  in  People  v.  Hill,  53  N.  Y.  547,  that  unreasonable  de- 
lay in  applying  for  the  writ  was  ground  for  refusing  it,  and  for 
quashing  it  even  after  a  hearing  on  the  return. 

Compare  §  2120,  Code  Civil  Procedure,  where  it  is  provided 
that  the  writ  of  certiorari,  except  the  writ  specified  in  §  2124,  is 
issued  to  review  the  determination  of  a  body  or  officer. 

In  proceedings  by  certiorari  it  is  only  the  hearing  of  the  merits 
which  is  to  be  had  at  the  General  Term.  All  incidental  motions 
should  be  heard  at  Special  Term.  People  ex  rel.  McNeary  v.  Mac- 
Lean  64  Hun,  206,  19  Supp.  56,  46  St.  Rep.  99.  The  writ  of  cer- 
tiorari must  be  served  within  four  calendar  months  after  the  de- 
termination of  the  body  which  is  sought  to  be  reviewed  thereby, 
even  though  the  decision  merely  suspended  the  relator  from  his 
position,  and  though  such  suspension  might  not  be  considered  to 
be  a  final  determination.  People  ex  rel.  Perry  v.  Stark,  22  St.  Rep. 
531,  4  Supp.  820.  A  determination  of  commissioners  of  highways 
laying  out  a  highway  is  final  and  binding  when  made,  recorded, 
and  posted,  and  brings  the  matter  under  the  limitation  of  §  2125, 
Code  Civil  Procedure,  requiring  the  writ  to  be  served  within  four 
months  after  such  determination ;  the  fact  that  an  appeal  has 
been  brought  to  review  such  determination  does  not  suspend 
during  its  pendency  the  running  of  the  statute.  People  ex  rel. 
Cook  V.  Hildreth,  126  N.  Y.  361,  37  St.  Rep.  394. 

The  collection  of  an  assessment  will  not  be  restrained  by  an 
injunction  where  the  plaintiff  has  lost  the  remedy  by  certiorari  to 
review  the  same,  owing  to  the  running  of  the  limitation  of  §  2125, 


340  WRIT   OF   CERTIORARI. 

Art.  3.     What  Court  may  Issue  Writ  and  within  What  Time. 

Code  Civil  Procedure.  Postal  Tel.  Cable  Co.  v.  Grant,  1 1  Supp. 
323.  The  provision  of  §  413  of  the  Code  of  Civil  Procedure,  which 
provides  that  the  Statute  of  Limitations  can  only  be  taken  advan- 
tage of  by  answer,  does  not  apply  to  the  limitation  to  certiorari 
provided  for  in  §  2125,  Code  of  Civil  Procedure,  and  therefore  it 
is  not  necessary  to  take  advantage  of  such  section  by  setting  it  up 
in  the  return.  Such  writ,  therefore,  served  after  the  expiration  of 
the  time  limitation  may  be  quashed  upon  motion  of  the  defend- 
ant. People  ex  rel.  Conner  v.  Purroy,  19  Supp.  907,  22  Civ.  Pro. 
116;  see  further  on  this  point.  People  ex  rel.  McNeary  v.  Mac- 
Lean,  64  Hun,  206,  19  Supp.  56,  46  St.  Rep.  99,  where  the  court 
says:  "  It  is  urged  that  the  only  method  in  which  the  appellants 
could  claim  the  advantage  of  the  Statute  of  Limitations  contained 
in  §  2125  is  by  setting  the  same  up  in  the  return.  It  is  apparent 
that  such  cannot  be  the  rule,  because  the  Code  requires  no  defence 
to  the  issuance  of  the  writ  to  be  returned,  but  simply  the  pro- 
ceedings upon  which  the  judgment  of  the  inferior  tribunal  was 
founded.  Where  it  appears  upon  the  face  of  the  petition  that  the 
statute  has  run,  it  is  not  necessary  that  the  fact  should  be  brought 
before  the  court  in  any  other  manner.  The  statutory  limitation 
of  four  months  of  §  2125,  Code  Civil  Procedure,  within  which  cer- 
tiorari must  be  brought  to  review  the  decision  of  a  board,  begins 
to  run  against  the  refusal  of  police  commissioners  to  reconsider 
their  action  in  accepting  the  resignation  of  a  policeman  from  the 
date  of  the  refusal  to  reconsider  and  not  from  the  date  of  accept- 
ing the  resignation.  People  ex  rel.  Goodivin  v.  Martin,  30  Supp. 
1107,  82  Hun,  6,  63  St.  Rep.  298;  but  compare  66  Hun,  93,  20 
Supp.  9z^4,  49  St.  Rep.  739.  The  expiration  of  the  four  months' 
limitation  in  §  2125  opposes  an  insuperable  bar  to  the  issuance  of 
the  writ  of  certiorari.  Jordon  v.  Board  of  Education,  14  Misc. 
119,  69  St.  Rep.  623,  25  Civ.  Pro.  89.  It  seems  that  where  an 
improper  classification  of  civil  service  positions  has  been  made  by 
a  mayor,  certiorari  to  review  the  same  must  be  brought  within 
four  months  from  the  time  of  such  classification.  Chittenden  v. 
Wurster,  152  N.  Y.  345. 

Before  the  enactment  of  §§2125  and  2126,  Code  Civil  Procedure, 
there  was  no  statute  or  rule  of  law  prescribing  any  fixed  period 
within  which  certiorari  must  be  applied  for,  and  the  granting  of 
the  same  was  always  a  matter  of  discretion.  People  ex  rel.  Smith 
V.  Cooper,  22    Hun,   515.     The  provision  of  chapter  457  of  the 


WRIT    OF    CERTIORARI.  34I 

Art.  3.     What  Court  may  Issue  Writ  and  within  What  Time. 

Laws  of  1881,  which  required  that  a  writ  of  certiorari  io  review 
the  determination  of  poHce  commissioners  removing  a  member 
of  the  poHce  force,  must  be  granted  and  served  within  thirty 
days  after  the  relator  was  notified  of  his  removal,  is  not  enlarged 
by  the  four  months'  limitation,  given  by  §  2125,  Code  Civil  Pro- 
cedure. These  statutory  provisions  are  not  inconsistent  though 
they  describe  different  limitation,  and  the  special  limitation  of 
Laws  1 88 1  is  of  paramount  authority  in  any  cases  arising  there- 
under. People  ex  rel.  Dumiigan  v.  Commissioners  of  Police,  47 
Hun,  408,  afifirmed  without  opinion  no  N.  Y.  681.  Where  a 
relator  in  certiorari  proceedings  is  out  on  bail,  and  had  full  liberty 
pending  an  indictment,  he  is  subject  to  the  four  months'  limita- 
tion of  §  2125,  and  cannot  avail  himself  of  the  enlargement  of 
time  given  by  subdivision  3  §  2126.  Matter  of  Squire  v.  City  of 
N.  v.,  16  St.  Rep.  946,  3  Supp.  141.  The  four  months' limitation 
of  §  2125  applies  to  certiorari  brought  on  the  ground  of  a  lack  of 
jurisdiction  as  well  as  if  brought  on  any  other  ground.  People 
ex  rel.  Springsted  v.  Trustees  of  Cobleskill,  49  St.  Rep.  48,  20 
Supp.  920.  Under  the  limitation  of  this  section  certiorari  will 
not  lie  to  review  the  action  of  dock  commissioners  in  removing 
the  relator  from  the  position  of  bookkeeper,  after  four  months 
from  such  determination  and  notice  thereof  to  the  relator. 
People  ex  rel.  Perry  v.  Stark,  52  Hun,  611,  4  Supp.  820. 

Where  no  notice  of  the  final  completion  of  the  assessment  roll 
has  been  given,  the  time  to  apply  for  a  certiorari  to  review  it  is 
unlimited.  Pea.  ex  rel.  Szvartzvoiit  v.  Village  of  Port  Jcrvis,  23 
Misc.  317,  52  Supp.  59,  86  St.  Rep.  59. 

The  four  months'  limitation  of  this  section  applies  where  an  as- 
sessment is  sought  to  be  reviewed,  even  though  it  be  on  the 
ground  of  want  of  jurisdiction.  People  ex  rel.  v.  Trustees  of 
Cobleskill,  66  Hun,  628,  20  Supp.  920.  The  remedy  of  the  re- 
spondent, where  the  limitation  of  this  section  has  expired,  is  by 
motion  ;  §  413  of  the  Code  Civil  Procedure  providing  that  the 
Statute  of  Limitations  can  only  be  taken  advantage  of  by  answer 
does  not  apply.  People  ex  rel.  v.  Purroy,  22  Civ.  Pro.  116,  19 
Supp.  907.  Though  the  four  months'  limitation  of  §  2125  is  ex- 
tended to  twenty  months,  where  the  relator  is  imprisoned  on  a 
criminal  charge,  yet  one  who  is  out  on  bail  during  the  four 
months  following  his  indictment,  is  not  entitled  to  this  extension 
by  §  2126.     People  ex  rel.  v.  City  of  New  York,  49  Hun,  607,  3 


342  WRIT    OF    CERTIORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

Supp.  141.  There  is  a  broad  difference  between  a  statute  of 
limitations  and  the  time  provided  by  statute  within  which  a  pro- 
ceeding must  be  instituted,  and  the  limitation  of  §  2125  is  more 
analagous  to  the  time  given  in  which  to  take  appeal,  in  which  case 
the  party  seeking  the  remedy  must  bring  himself  within  the  stat- 
tute  ;  therefore  where  a  determination  sought  to  be  reviewed  by 
certiorari  has  become  final,  because  the  writ  is  issued  more  than 
four  months  after  the  determination  sought  to  be  reviewed,  such 
writ  may  be  quashed  upon  motion.  People  v.  Piirroy,  22  Civ. 
Pro.  117,  19  Supp.  907.  As  to  whether  the  determination  by 
commissioners  of  city  works  in  levying  an  assessment  for  a 
sewer,  is  final  and  binding  upon  the  relator  within  the  meaning 
of  §  2125,  see  People  ex  rel.  Tabor  v.  Adams,  45  St.  Rep.  270,  18 
Supp.  441.  Proceedings  by  r^r/z^r^W  may  be  instituted  at  any 
time  within  four  months  after  the  right  accrues.  Martin  v. 
Sinio)LS,  4  Misc.  8. 

The  right  to  certiorari  is  a  right  which  accrues  when  the  de- 
termination to  be  reviewed  becomes  final  and  binding  upon  the 
relator,  and  it  must  be  granted  within  four  calendar  months  after 
the  determination  to  be  reviewed  becomes  thus  final  and  binding. 
People  ex  rel.  Bronks  Gas  Co.  v.  Barker,  22  App.  Div.  165.  It 
seems  that  proceedings  taken  by  certiorari  issued  on  the  3d  of 
September  to  review  a  determination  of  a  department  of  public 
parks  in  New  York,  which  became  final  on  the  30th  day  of 
April,  is  barred  by  §  2125.  People  ex  rel.  Traphaghen  v.  King, 
13  App.  Div.  401. 

ARTICLE  IV. 

Petition  and  Notice  of  Application  for  the  Writ. 
§§  2127,  2128. 

§  2127.  [Am'd,  1895.]  Application  for  writ;  where  and  how 
made. 

An  application  for  the  writ  must  be  made  by,  or  in  behalf  of,  a  person  aggrieved  by 
the  determmation  to  be  reviewed ;  must  be  founded  upon  an  affidavit,  or  a  verified 
petition,  which  maybe  accompanied  by  other  written  proof;  and  must  show  a  proper 
case  for  the  issuing  of  the  writ.  It  can  be  granted  only  at  a  term  of  the  appellate 
division  of  the  Supreme  Court  or  at  Special  Term  ;  and  the  granting  or  refusal  theraof 
is  discretionary  with  the  court. 

L.  1S47,  ch.  280,  §  17  (4  Edm.  561)  ;   L.  1895,  ch.  946. 

^  2128.  When  notice  necessary  ;  service  thereof. 

Until  provision  is  made,  in  the  general  rules  of  practice,  for  requiring,  or  dispensing 


WRIT    OF    CERTIORARI.  343 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

with  notice  of  the  application  for  the  writ,  the  court  to  which  the  application  for  the 
writ  is  made,  may,  in  its  discretion,  require  or  dispense  with  notice.  A  notice,  when 
it  is  necessary,  must  be  served,  with  copies  of  the  papers  upon  which  the  application 
is  to  be  made,  upon  the  body  or  officer,  whose  determination  is  to  be  reviewed,  or 
upon  such  other  person  as  the  court  directs,  as  prescribed  in  this  article  for  the  service 
of  a  writ  of  certiorari.  The  service  must  be  made,  at  least  eight  days  before  the  ap- 
plication, unless  the  court,  by  an  order  to  show  cause,  prescribes  a  shorter  time. 
Where  notice  is  given,  the  person  served  may  produce  affidavits  or  other  written 
proofs,  upon  the  merits,  in  opposition  to  the  appHcation. 

It  must  appear  that  some  one  is  aggrieved,  and  the  extent  of 
their  interest.  Ex  parte  Mayor  of  Albany,  23  Wend.  277.  A 
petition  to  review  the  illegaHty  of  an  assessment  under  chapter 
269,  Laws  of  1880,  may  be  presented  by  a  number  of  petitioners, 
and  verified  by  one.  It  is  not  necessary  each  petitioner  should 
sign  the  petition  ;  it  may  be  signed  by  an  attorney.  People  ex 
rcl.  V.  Coleman,  41  Hun,  307.  The  application  for  the  writ  was 
formerly  founded  on  affidavit.  Fitch  v.  McDowell,  7  Cow.  537. 
Cause  must  be  shown  in  all  cases  where  certiorari  is  brought  to 
review  the  proceedings  of  an  inferior  tribunal  for  error.  It  is 
never  granted,  of  course,  except  when  sued  out  by  the  people. 
Munn  V.  Baker,  6  Cow.  396.  Before  allowing  or  acting  upon  the 
writ  the  court  should  be  satisfied  that  it  is  essential  to  prevent 
some  substantial  injury  to  the  applicant,  and  that  the  object 
aimed  at  by  him  would  not,  if  accomplished,  be  productive  of 
great  inconvenience  or  injustice.  People  v.  Mayor,  5  Barb.  43  ; 
Conover  v.  Berlin,  24  Barb.  641.  When  granted  upon  mere  sug- 
gestion without  affidavit,  the  writ  was  quashed  on  application  of 
defendant.  Bogert  v.  Mayor  of  Nezv  York,  7  Cow.  158  ;  Comstock 
v.  Porter,  5  Wend.  98.  A  certiorari  to  review  the  acts  and  de- 
cisions of  special  jurisdictions  created  by  statute,  and  not  pro- 
ceeding according  to  the  course  of  the  common  law,  is  not  a 
matter  of  right,  but  will  only  be  granted  on  cause  shown. 
People  V.  Supervisors  of  Allegany,  15  Wend.  198.  An  order  allow- 
ing the  writ  will  not  be  reversed,  except  in  case  of  a  palpable  abuse 
of  discretion.  People  v.  Cooper,  9  Week.  Dig.  229.  It  is  within 
the  discretion  of  the  Supreme  Court  to  grant  or  withhold  the 
writ,  even  if  the  relator  has  no  other  remedy,  and  the  decision 
cannot  be  reviewed  in  Court  of  Appeals.  People  v.  McCarthy, 
102  N.  Y.  630.  The  writ  can  only  be  granted  at  a  General  or  a 
Special  Term  of  the  court,  but  when  the  order  granting  the  writ 
shows  by  the  caption  that  the  writ  was  regularly    granted  at 


344  WRIT   OF   CERTIORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

Special  Term,  at  a  time  and  place  when  a  term  for  hearing  ex 
parte  motions  might  have  been  held,  and  that  it  was  allowed  by- 
one  of  the  justices  of  the  court,  this  should  be  held  conclusive  on 
a  motion  to  quash.  People  ex  rel.  Burhans  v.  Supervisors  of 
Ulster,  19  Week.  Dig.  208.  The  afifidavit  should  not  be  entitled. 
Haight  v.  T2irner,2  Johns.  371  ;  Whitney  v.  Warner,  2  Cow.  499. 
A  petition  on  certiorari  should  not  be  quashed  because  it  sets 
out  other  grounds  not  material  to  the  questions  involved,  where 
it  does  clearly  state  adequate  grounds  of  complaint.  People  ex 
rel.  V.  McComber,  7  Supp.  71.  The  Forest  Commission  has  been 
a  continuous  body  since  its  creation,  and  is  a  proper  relator  in  rrr- 
//<3r«rz  proceedings  under  §  2127,  Code  Civil  Procedure,  and  such 
commission  may  act  in  the  names  of  the  individual  members 
conposing  it,  or  may  act  as  a  body.  People  ex  rel.  Forest  Coni- 
viissionv.  Campbell,  152  N.  Y.  56,  reversing  82  Hun,  338,614,  64 
St.  Rep.  98,  31  Supp.  449.  As  by  §  2127  the  granting  or  re- 
fusal of  the  writ  is  discretionary  with  the  court,  an  order  which 
quashes  or  dismisses  the  writ  is  not  appealable  to  the  Court  of 
Appeals,  unless  it  appears  in  the  order  that  the  quashing  or  dis- 
missal of  the  writ  was  made  for  want  of  jurisdiction,  or  upon  the 
ground  that  the  proceedings  were  found  to  be  irregular.  People 
ex  rel.  O^ Connors  v.  Supervisors,  153  N.  Y.  374.  It  is  a  conclu- 
sive answer  on  appeal  that  certiorari  was  refused  as  a  matter  of 
discretion  unless  it  is  claimed  that  the  writ  was  denied  by  the 
court  for  want  of  power  to  issue  it  in  the  case  presented.  People 
ex  rel.  Leo  v.  Hill,  37  St.  Rep.  115,  13  Supp.  188,  affirmed,  126 
N.  Y.  502,  792.  If  it  appears  upon  the  face  of  the  papers  in  pro- 
ceedings of  certiorari  to  review  the  relator's  removal  from  an  of- 
fice, that  he  was  never  entitled  to  the  office,  he  is  not,  "a  person 
aggrieved  by  the  determination  to  be  reviewed,"  and  is  not  entitled 
to  the  writ,  under  §  2127,  Code  Civil  Procedure.  People  ex  rel. 
Russell  V.  The  Commissioner z,  y6  Hun,  149,  57  St.  Rep.  305. 
Section  2127,  Code  Civil  Procedure,  merely  embodies  the  pre-ex- 
isting practice  of  the  courts  as  to  its  discretion  in  \^sw\ng  certiorari. 
The  court  distinguishes  between  the  common-law  writ  and  the 
statutory  writ  of  certiorari  to  review  illegal  assessments,  and 
holds  that  the  granting  of  the  statutory  writ  is  not  a  matter  of 
discretion,  but  the  petitioner  is  entitled  thereto  as  a  matter  of 
right.  Matter  of  Corwin,  135  N.  Y.  248,  48  St.  Rep.  239; 
People  ex  rel.  C.  M.  T.  Co.  v.  The  Commissioners,    144  N.  Y.  487, 


WRIT   OF   CERTIORARI.  34$ 


Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 


A  person  not  owning  the  adjoining  lands,  and  having  no  grant 
of  lands  under  the  waters  of  a  navigable  river,  is  not  a  party  ag- 
grieved by  the  decision  of  the  commissioners  of  the  land  ofifice 
granting  such  lands,  and  is  therefore  not  entitled  to  review  the 
same  by  certiorari.  People  ex  rel.  Blakslce  v.  Commissioners, 
135  N.  Y.  449,  48  St.  Rep.  433.  The  fact  that  the  application  for 
the  writ  may  be  made  either  at  Special  Term  or  in  the  appellate 
division  does  not  affect  the  right  of  the  latter  court  to  review  a 
Special  Term  decision,  though  the  application  was  first  made  to 
the  Special  Term.  Matter  of  Light,  30  App.  Div.  52,  dis- 
tinguishing BoecJiat  v.  Brown,  9  App.  Div.  369. 

The  board  of  fire  commissioners  of  Auburn  has  power  to  dis- 
solve volunteer  hose  companies,  and  "  a  person  aggrieved  "  with- 
in the  meaning  of  ^  2127  of  the  Code,  relating  to  certiorari,  does 
not  include  a  member  of  such  company.  Peo.  ex  rel.  Healey  v.  Fire 
Conimrs.,  27  App.  Div.  530,  50  Supp.  506,  84  St.  Rep.  506.  Where 
the  allegations  of  the  petition  and  the  writ  are  indefinite  the  rem- 
edy is  by  motion,  before  filing  the  return,  to  make  them  more 
definite  and  certain.  Peo.  ex  rel.  N.  V.  C.  &  H.  R.  R.  R.  Co.  v. 
Budlong,  25  App.  Div.  373,  49  Supp.  484,  83  St.  Rep.  484. 

The  order  of  the  court  quashing  the  writ  of  certiorari  issued  to 
review  the  proceedings  of  the  State  board  of  equalization  is  dis- 
cretionary under  Code  of  Civil  Procedure,  §  2127,  and  is  not  re- 
viewable on  appeal,  except  where  the  court  has  refrained  from 
exercising  its  discretion,  and  quashes  the  v/rit  upon  the  ground  of 
a  want  of  power  to  issue  it.  People  ex  rel.  Mayor  v.  McCarthy, 
102  N.  Y.  635.  While  the  issuance  of  the  common-law  writ  is 
discretionary  under  the  Code,  the  statutory  writ  to  review  the 
decision  of  an  excise  board  is  imperative  and  not  a  matter  of  dis- 
cretion.    People  ex  rel.  Deiitsch  v.  Dalton,  9  Misc.  251. 

Petition  for  Certiorari  to  Review  Action  of  Supervisors. 
(17  App.  Div.  202.) 

To  the  Supreme  Court  of  the  State  of  New   York  : 

The  petition  of  William  H.  Baldwin  respectfully  shows  : 
That  he  is  over  21  years  of  age  and  resides  in  the  town  of  Dix, 
in  Schuyler  County,  in  the  State  of  New  York,  and  is  and  has  been 
for  the  past  20  years  the  owner,  proprietor,  and  editor  of  a  news- 
paper known  and  called  "  The  Watkins  Democrat,"  which  is  pub- 
lished and  issued  weekly  in  the  village  of  Watkins  in  said  county  of 
Schuyler,  N.  Y.     That  said  newspaper  consists  of  two  sheets  mak- 


346  WRIT    OF   CERTIORARI. 


Art    4.     Petition  and  Notice  of  Application  for  the  "Writ. 


ino-  four  pages  of  printed  matter,  containing  the  current,  and  local 
news  of  the  day,  advertisements,  legal  notices,  editorials  and  corre- 
spondence, and  is  devoted  to  the  dissemination  of  news,  and  infor- 
mation to  the  public,  and  has  about  700  regular  subscribers. 

That  for  the  past  20  years  it  has  represented  the  Democratic  party, 
which  is  one  of  the  two  principal  political  parties  in  which  the  peo- 
ple of  Schuyler  County  are  divided.  At  the  time  of  the  last  election 
and  during  the  last  presidential  compaign,  it  was  the  only  news- 
paper in  the  county  of  Schuyler  which  advocated  the  election  of  the 
regular  Democratic  candidates  nominated  in.  and  for  the  ol^ces  to  be 
filled  in  said  county  by  the  regular  Democratic  party  in  convention 
assembled.  That  said  newspaper  advocated  the  election  of  John 
Boyd  Thacher,  Democratic  nominee  and  candidate  for  governor 
of  the  State  of  New  York,  nominated  by  the  regular  Democratic 
party  in  convention  assembled  at  Buffalo,  N.  Y. ,  in  September  last, 
until  said  John  Boyd  Thacher  resigned  and  refused  to  be  a  candidate 
for  governor  upon  said  Democratic  ticket. 

That  thereafter  the  said  Watkins  Democrat  advocated  the  elec- 
tion of  Daniel  G.  Griffin,  and  F.  W.  Heinrich,  and  Spencer  Clinton, 
the  nominees  of  the  party  known  as  the  "National  Democracy," 
duly  nominated  by  the  said  party  in  convention  assembled  at 
Brooklyn,  N.  Y. ,  in  September  last,  as  the  candidates  for  the  office 
of  governor,  lieutenant-governor,  and  judge  of  the  Court  of  Appeals, 
respectively. 

That  after  the  National  Convention  of  the  Democratic  party  held 
at  Chicago,  111.,  at  which  William  J.  Bryan  and  Arthur  Sewell  were 
nominated  for  the  office  of  president  and  vice-president  respectively, 
said  Watkins  Democrat  did  not  advocate  the  election  of  the  said 
nominees  for  the  olfice  of  president  and  vice-president,  and  there- 
after advocated  the  election  of  no  candidates  for  said  office  until 
after  the  convention  of  the  National  Democratic  party,  held  at 
Indianapolis,  Ind.,  in  September  last,  at  which  John  M.  Palmer  and 
Simon  B.  Buckner  were  nominated  as  candidates  for  said  party  for 
the  office  of  president  and  vice-president  respectively  ;  and  that 
after  their  nomination  the  said  Watkins  Democrat  published  their 
names  at  the  top  of  its  editorial  page  as  the  candidates  of  said  news- 
paper, and  kept  the  names  of  said  Palmer  and  Buckner  and  of  all 
electors  duly  designated  at  the  Brooklyn  convention  of  said  party 
aforesaid  to  represent  said  candidates,  and  of  said  Griffin,  Heinrich, 
and  Clinton,  and  of  the  regular  Democratic  nominees  for  the  various 
county  offices  to  be  elected  at  the  then  ensuing  election  at  the  top, 
and  in  the  first  column  of  its  editorial  page  until  the  time  of  such  last 
general  election  occurring  upon  the  3d  day  of  November  last. 

That  previous  to  the  last  presidential  campaign  and  during  the 
time  that  the  said  Watkins  Democrat  has  been  published  and  circu- 
lated, it  has  been  a  Democratic  newspaper  and  unswerving  in  its 
advocacy  of  the  principles  enunciated  by  every  Democratic  plat- 
form, whether  State  or  National. 

That  said  Watkins  Democrat  now  is,  and  for  a  period  of  about  one 
year  has  been  the  only  newspaper  in  any  manner  representing  Demo- 
cratic principles  or  advocating  the  election  of  any  Democratic  can- 


WRIT   OF   CERTIORARI.  347 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

didates  whosoever,  except  a  so-called  newspaper  known  as  the  Wat- 
kins  Advocate,  which  published  two  issues  about  the  time  of  the 
last  election  and  has  never  published  an  issue  since  the  last  election 
held  upon  the  3d  day  of  November,  1896. 

That  the  Watkins  Review  is  a  newspaper  published  and  printed  in 
the  village  of  Watkins  in  the  said  town,  county,  and  State,  and  is 
owned,  controlled,  edited,  and  published  by  John  Corbett,  now  a 
supervisor  of  the  town  of  Reading,  Schoharie  County,  N.  Y. ,  and 
elected  as  such  supervisor  in  February  last  upon  the  Republican 
ticket  in  said  town. 

That  the  said  Watkins  Review  now  is  and  ever  since  the  time  of 
the  publication  of  its  first  issue  in  or  about  the  month  of  February, 
1896,  has  been,  a  non-partisan  publication,  and  during  the  campaign 
last  past  and  hereinbefore  referred  to  has  not  advocated  the  election 
of  any  candidate  whosoever  for  any  office  upon  any  ticket,  nor  has 
it  at  anytime  whatsoever  placed  the  names  of  any  candidates  upon 
its  editorial  page,  or  on  any  page,  as  the  candidates  of  the  Watkins 
Review  for  any  office  whatsoever,  and  that  in  all  respects  the  Wat- 
kins Review  is  a  non-partisan  paper  and  does  not  represent  either 
of  the  two  principal  political  parties  into  which  the  people  of  the 
State  and  county  are  divided. 

That  the  board  of  supervisors  of  the  said  county  of  Schuyler  now 
in  session  at  the  court-house  in  the  village  of  Watkins,  N.  Y. ,  is 
composed  of  eight  members,  five  of  whom  were  elected  as  members 
of  said  board  upon  the  Republican  ticket,  and  three  of  whom  were 
elected  as  members  of  said  board  of  supervisors  of  their  respective 
towns  upon  the  Democratic  ticket.  All  of  whom  were  elected  during 
the  month  of  February,  1896. 

That  the  Democratic  members  of  said  board  are  as  follows  :  (insert 
names  and  the  wards  or  towns  they  represent). 

That  on  the  first  day  of  December,  1896,  and  while  acting  as 
members  of  said  board  of  supervisors,  the  said  (insert  name  of 
Democratic  members)  being  a  majority  of  the  said  Democratic 
members,  designated  in  writing  the  Watkins  Review  as  the  news- 
paper fairly  representing  the  Democratic  party  to  which  they 
belonged  to  publish  the  session  laws  and  concurrent  resolutions  of 
the  legislature  required  by  law  to  be  published,  and  signed  the  same 
and  filed  it  with  the  clerk  of  the  board  of  supervisors,  and  a  copy 
thereof  is  hereto  annexed  and  marked  Exhibit  A,  and  forms  part  of 
this  petition. 

That  the  said  Watkins  Review  does  not  fairly  represent  the  political 

party  to  which  the  said and belong,  and  that  by  said 

designation  great  injustice  has  been  done  to  your  petitioner. 

That  this  petitioner  is  advised  that   the  determination  and  action 

of  the  said and in  designating  the  Watkins  Review 

as  one  of  the  newspapers  to  publish  the  session  laws  and  concurrent 
resolutions  of  the  legislature  required  by  law  to  be  published  as 
aforesaid  should  be  reviewed  by  a  writ  of  certiorari  and  relief 
granted  to  him. 

That  no  previous  application  for  a  writ  of  certiorari  has  been  made 
to  any  court  in  this  matter. 


348  WRIT    OF    CERTIORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

That  hereto  attached  are  copies  of  the  said  Watkins  Democrat  and 
Watkins  Review,  and  which  form  part  of  this   petition. 

Wherefore,  your  petitioner  prays  that  a  writ  of  certiorari  may  be 

issued  and  allowed  by  this  honorable  court,  directed  to  said 

and as  such  supervisors  as  aforesaid,   commanding  them  to 

certify  and  return  to  this  court  all  their  proceedings  and  decisions 
had  and  made  in  the  premises,  together  with  a  record  of  all  pro- 
ceedings had  before  them  at  the  time  of  the  said  designation  of  the 
said  newspapers  as  aforesaid,  including  all  evidence  taken  by  them, 
to  the  end  that  the  said  designation,  determination,  and  action  may 
be  reviewed  and  corrected  on  the  merits  by  this  honorable  court,  and 
that  the  aforesaid  errors  committed  by  them  in  designating  the  Watkins 
Review  to  publish  the  session  laws  and  concurrent  resolutions  of  the 
legislature  required  by  law  to  be  published  as  aforesaid  may  be 
corrected,  and  that  the  proceedings  had  by  them  as  aforesaid  maybe 
reversed,  modified,  and  corrected  so  as  to  designate  the  Watkins 
Democrat  as  the  newspaper  to  publish  in  and  for  the  said  county  of 
Schuyler  the  session  laws  and  concurrent  resolutions  of  the  legis- 
lature required  by  law  to  be  published  as  aforesaid.  And  that  your 
petitioner  may  have  such  other  and  further  relief  as  to  the  court  may 
seem  just,  and  that   all   proceedings  on    account  of  or  by  reason  of 

such  determination,  designation,  and  action  of  the  said and 

as  such  supervisors  be  stayed  until  the  hearing  and  deter- 
mination of  the  writ  of  certiorari  made  herein. 

WILLIAM  H.  BALDWIN. 

(Add  verification.^ 

Petition  for  Certiorari  to  Board  of  Health.     (58  Hun,  595.) 

To  the  Supreme  Court  0/  the  State  of  New  York  : 

The  petition  of  the  New  York  Central  &  Hudson  River  Railroad 
Company,  by  H.  J.  Hayden,  a  director  thereof,  respectfully  shows 
to  the  court : 

That  your  petitioner  is  a  railroad  corporation  organized  under  the 
Laws  of  the  State  of  New  York,  and  at  all  the  times  herein  men- 
tioned was  and  still  is  lawfully  engaged  in  maintaining  and  operat- 
ing the  New  York  Central  &  Hudson  River  Railroad,  a  branch  of 
which  crosses  Cayuga  Lake,  in  said  State  of  New  York,  within  one 
mile  or  thereabouts  of  the  northern  end  of  said  lake.  The  west 
shore  of  said  lake  is  in  the  town  of  Seneca  Falls,  in  Seneca  County. 

Said  railroad  crosses  said  lake  in  an  easterly  and  westerly  direc- 
tion upon  an  earthen  road-bed,  built  out  into  the  lake  from  each 
shore  a  distance  of  three-fourths  of  a  mile  or  thereabouts.  That  it 
is  now  engaged  in  building  a  bridge  extending  from  the  middle  por- 
tion of  the  course  of  said  railroad  across  said  lake,  which  bridge 
will  connect  with  the  earthen  embankments  extending  from  the  east 
and  west  shores.  There  will  be  ten  open  waterways  beneath,  aggre- 
gating 611  feet  in  length,  affording  large  and  ample  passage  for  the 
water  of  said  lake  in  its  natural  course  to  its  outlet  towards  the  north. 
There  is  a  slight  current  in  the  water  of  said  lake,  and  said  bridge 
will  be  built  over  such  natural  current  whereby  the  natural  passage 


WRIT    OF    CERTI(~)RARI.  349 


Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 


of  the  water  of  said  lake  is  preserved.  That  the  means  fur  crossing- 
said  lake  by  said  railroad  upon  said  earthen  road-bed  and  bridge 
constructed  as  aforesaid,  and  as  the  same  is  to  be  constructed,  will 
not  and  does  not  in  any  degree  impede  or  change  the  natural  course 
or  fiow  of  the  waters  of  said  lake,  as  I  am  informed  and  believe. 

-phat ,    and ,  at  the   time   herein  men- 
tioned composed  the  board  of  health  of  the  town  of  Seneca  Falls. 

That,  as  your  petitioner  is  informed  and  believes,  said  persons,  or 
some  of  them,  composing  said  board  of  health,  without  complaint 
made  to  or  presented  to  said  Board,  and  without  taking  any  testi- 
mony and  without  evidence  presented  to  them,  unwarrantably,  un- 
lawfully, and  without  authority  and  v^^ithout  notice  to  your  petitioner 
and  without  giving  your  petitioner  any  opportunity  to  be  heard, 
issued  the  papers  annexed  to  the  petition  and  affidavit  of  your  peti- 
tioner herein,  purporting  to  be  the  determination  of  said  board  of 
health,  that  two  openings  100  feet  wide  should  be  made  in  said 
embankment  extending  from  the  west  shore  of  said  lake  for  the 
passage  of  water,  based  upon  the  conclusion  of  said  persons, 
or  some  of  them,  composing  said  board,  that  said  embankment  arid 
bridge  as  now  constructed  or  as  the  same  is  to  be  constructed  will 
cause  stagnation  of  water  and  an  accumulation  of  vegetable  matter 
near  the  west  shore  of  said  lake,  next  to  the  said  embankment,  that 
is  detrimental  to  public  health,  by  which,  in  substance,  your 
petitioner  is  ordered  to  make  two  openings  in  said  earthen  embank- 
ment extending  from  the  west  shore  of  said  lake  100  feet  wide,  and 
caused  said  papers  to  be  served  upon  your  petitioner  by  delivering 
copies  thereof  to  William  Cowin,  station  agent  at  Seneca  Falls,  for 
your  petitioner,  and  Hon.  Chauncey  M.  Depew,  president  of  the 
New  York  Central  &  Hudson  River  Railroad  Company. 

Your  petitioner  alleges  that  the  alleged  determination  of  said  board 
of  health  is  erroneous  in  stating  that  the  said  embankment  and 
bridge  cause  stagnation  of  any  portion  of  the  waters  of  said  lake,  or 
the  accumulation  of  decayed  matter  or  unhealthful  substance  therein, 
and  that  said  bridge  and  embankment  are  the  causes  contributing  to 
any  conditions  in  the  waters  in  said  lake  detrimental  to  public 
health. 

That  in  fact  said  embankment  and  bridge  as  the  same  now  exist, 
and  as  the  same  will  be  constructed,  will  not  and  do  not  retard  the 
natural  flow  of  the  waters  of  the  said  lake,  or  change  or  interfere 
with  the  same,  but  the  large  openings  in  said  bridge  do  and  will 
fully  furnish  for  the  outlet  of  said  waters  and  afford  the  means  for 
the  passage  of  a  much  larger  volume  of  water  than  ever  accumulates 
in  said  lake.  That  the  point  in  said  lake  mentioned  in  the  proceed- 
ings at  said  board  where  it  is  claimed  accumulations  form,  causing 
sta^rnation  of  water,  due  to  the  construction  of  the  bridge,  is  natur- 
ally shallow  and  without  current,  and  there  is  a  tendency  to  the 
growth  of  flag  and  water  plants  there,  and  your  petitioner  claims 
that  such  condition  of  the  water  has  not  been  caused  or  in  no  way 
contributed  to  by  said  embankments  or  bridge,  but  that  the  same 
condition  would  exist  if  said  embankment  was  removed  or  if  the 
same  had  never  been  built. 


350  WRIT    OF    CERrrORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

That  the  action  of  the  persons  comprising  said  board  is  based 
upon  this  conclusion  only,  unsupportable  by  evidence  or  facts. 
That  its  said  conclusion  -in  its  findings  and  in  respect  to  the  con- 
dition of  the  waters  mentioned  as  the  cause  of  such  condition  are 
erroneous  and  contrary  to  the  facts  ;  that  the  changes  and  openings 
in  said  embankment  proposed  and  ordered  by  said  board  would  be 
a  great  charge  and  expense  to  your  petitioner,  amounting  to  many 
thousands  of  dollars. 

That  as  your  petitioner  is  advised  and  believes  the  said  proceed- 
ings of  said  board  is  an  attempt  to  interfere  with  and  destroy  the 
property  of  the  said  railroad  company  without  due  process  of  law 
and  without  notice  to  the  said  company,  and  without  giving  it  any 
opportunity  to  be  heard.  Said  board  has  issued  said  determination 
and  proceedings  upon  the  assumption  (if  the  same  were  issued  by 
said  board)  that  there  is  a  stagnation  of  water  at  the  point  of  the  lake 
at  its  west  shore  next  said  embankment,  caused  by  said  embankment, 
or  by  the  construction  of  the  new  bridge  and  approaches  thereto,  in 
that  vegetable  matter  and  unhealthful  substance  accumulate  there  by 
reason  of  said  embankment  and  new  bridge,  and  therefore  has  de- 
termined that  said  openings  shall  be  made.  This  is  an  erroneous 
assumption  or  conclusion  of  said  board,  unsupported  by  evidence, 
investigation,  or  knowledge,  and  is  not  a  proper  or  legal  basis  for  its 
determination  issued  as  aforesaid.  And  as  your  petitioner  is  advised 
and  believes  all  said  proceedings  of  said  board  are  irregular  and  not 
in  conformity  to  law,  and  in  all  respects  unlawful  and  unauthorized, 
null  and  void,  and  said  board  never  acquired  jurisdiction  to  make 
its  determination  issued  and  served  as  aforesaid. 

That  no  previous  application  for  a  writ  of  cer//or(7r/ has  been  made 
herein. 

Wherefore,  your  petitioner  prays  that  a  writ  of  certiorari  may  be 
issued  and  allowed  by  this  honorable  court  directed  to  said  board 
of  health,  commanding  it  to  serve  and  return  to  this  court  all  and 
singular  its  proceedings,  decisions,  and  actions  of  said  board  in  the 
premises,  together  with  all  evidence  and  data,  writings, minutes,  and 
memoranda  upon  which  it  proceeded  or  arrived  at  its  determination 
and  conclusion  in  the  premises,  to  the  end  that  said  determination, 
actions,  conclusions,  and  proceedings  of  said  board  may  be  reviewed 
and  corrected,  vacated  and  set  aside  and  adjudged  null  and  void,  and 
that  your  petitioner  may  have  such  other  and  further  relief  as  to  the 
court  may  seem  just,  and  that  all  proceedings  on  account  of  or  by 
reason  of  said  determination  of  said  board  be  stayed,  and  that  all 
steps  and  proceedings  on  the  part  of  said  board  or  any  of  its  mem- 
bers for  opening  said  embankment  or  the  removal  thereof  be  stayed 
until  the  hearing  and  determination  of  this  writ. 

Dated  March  11,  1890. 

NEW  YORK  CENTRAL  &  HUDSON   RIVER 
RAILROAD  COMPANY, 
By  H.  J.    HAYDEN, 

{^Add  verification.')  A  director  thereof. 


WRIT   OF   CERTIORARI.  35  I 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 


Petition  for  Writ  to  Commissioner  of  Fire  Department. 

(149  N.  Y.  549.) 
To  the  Supreme  Court  of  the  State  0/  New  Fork  : 

The  petition  of  Philip  E.  Miller  respectfully  shows  : 

1.  That  at  all  the  times  hereinafter  mentioned  petitioner  was  and 
still  is  a  citizen  of  the  United  States  of  America  and  a  resident  and 
elector  of  the  city  of  Brooklyn,  county  of  Kings  and  State  of  New 
York. 

2.  That  on  or  about  the  9th  day  of  December,  1890,  petitioner 
was  duly  appointed  a  member  of  the  fire  department  of  the  city  of 
Brooklyn,  to  wit,  a  fireman  therein,  and  thereupon  duly  qualified 
and  entered  upon  the  discharge  of  his  duties  of  said  office,  and  con- 
tinued to  perform  the  same  until  the  8th  day  of  January,  1895.  That 
your  petitioner  was  a  member  of  Engine  Company  No.  24  in  said  de- 
partment for  about  two  years  preceding  January  8th.  1895. 

3.  That  on  or  about  the  first  day  of  February,  1894,  pursuant  to 
law,  the  Hon.  Charles  A.  Schieren,  mayor  of  the  city  of  Brooklyn,  as 
such  appointed  Frederick  W.  Wurster,  commissioner  of  the  fire  de- 
partment ot  the  said  city  of  Brooklyn,  and  said  Frederick  W.  Wur- 
ster thereupon  duly  qualified  and  entered  upon  the  discharge  of  the 
duties  of  said  office,  and  has  continued  ever  since  and  still  is  com- 
missioner of  the  fire  department  of  the  said  city  of  Brooklyn. 

4.  That  on  the  8th  day  of  January,  1895,  said  commissioner  irregu- 
larly, illegally,  and  without  cause  removed  your  petitioner  from  said 
position  and  membership  of  said  fire  department  of  the  city  of 
Brooklyn,  as  will  more  fully  appear  in  the  proceedings  of  the  said 
commissioner  of  the  fire  department  of  the  city  of  Brooklyn. 

5.  That  on  the  3d  day  of  January,  1895,  your  petitioner  was 
charged  with  being  intoxicated  on  the  evening  of  January  2d, 
1895,  and  a  trial  was  had  upon  said  charges  before  said  commis- 
sioner on  the  8th  day  of  January,  1895,  and  your  petitioner  was 
found  guilty  thereof  by  said  commissioner  and  sentenced  to  dis- 
missal from  the  fire  department  of  the  city  of  Brooklyn. 

6.  That  the  petitioner  plead  not  guilty  to  said  charge,  that  the 
only  evidence  offered  in  support  of  said  charge  was  the  testimony 
of  Patrick  Lahey,  foreman,  and  John  Asmus,  assistant  foreman,  of 
Engine  Company  No.  24,  of  the  ^fire  department  of  the  city  of 
Brooklyn,  who,  after  being  duly  sworn,  testified  that  your  petitioner 
was  not  guilty  of  such  charge.  That  your  petitioner  testified  before 
said  commissioner  in  answer  to  said  charge  and  denied  that  he  was 
intoxicated  as  charged  and  alleged,  that  on  the  contrary  he  was 
suffering  from  a  severe  illness. 

7.  That  on  December  30th,  1894,  January  ist,  and  January  2d, 
1895,  your  petitioner  was  charged  with  absence  without  leave  from 
his  company's  quarters  as  follows  (insert  facts  on  which  charges  are 
based),  and  a  trial  was  had  upon  said  charges  before  said  commis- 
sioner on  the  8th  day  of  January,  1895,  and  your  petitioner  was 
found  guilty  thereof  by  said  commissioner.  That  at  the  hearing  of 
said  charges  petitioner  admitted  his  absence  from  his  company's 
quarters  at  the  times  alleged,  and  stated  to  said  commissioner  that 


352  WRIT   OF    CERTIORARI. 


Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 


said  absence  was  caused  by  reason  of  your  petitioner's  sickness  and 
his  inability  to  perform  duty  during  the  times  specilicd  to  said 
chari>-es  (insert  petitioner's  details  of  absence  with  reasons  therefor). 

8.  Your  petitioner  solemnly  swears  that  on  the  second  day  of  Jan- 
uary, 1895,  he  did  not  drink  or  taste  in  any  form  or  manner,  ale, 
beer,  wine,  or  liquor  of  any  description. 

9.  That  on  the  8th  day  of  January,  1895,  said  Frederick  W.  Wur- 
ster,  commissioner  of  the  fire  department  of  the  city  of  Brooklyn, 
served  upon  your  petitioner  the  following-  decision  on  the  charges 
preferred  against  your  petitioner  (insert  copy  of  commissioner's 
decision). 

10.  Your  petitioner  further  says  that  no  charges  were  pending 
against  him  other  than  those  mentioned  herein. 

Wherefore,  your  petitioner  prays  that  a  writ  of  certiorari  issue 
herein  directed  to  said  Frederick  W.  Wurster,  as  commissioner  of  the 
fire  department  of  the  city  of  Brooklyn,  commanding  him  to  return 
to  this  honorable  court  the  record  of  the  appointment  of  your  peti- 
tioner as  a  member  of  the  fire  department  in  the  city  of  Brooklyn, 
the  charges  preferred  against  petitioner  on  the  31st  day  of  December, 
1894,  January  ist  and  3d,  all  the  testimony  taken  at  the  hearing  on 
said  charges,  and  all  statements  made  at  said  hearing  by  your  pe- 
titioner, together  with  all  the  proceedings  touching  the  removal  of 
petitioner  from  membership  in  the  fire  department  of  the  city  of 
Brooklyn. 

And  your  petitioner  will  ever  pray. 

Dated  New  York,  January  24th,  1895. 

PHILIP  E.   MILLER. 

{Add  verification. ) 

Affidavit  for  Writ  of  Certiorari  to  Highway  Commissioners. 

(126  N.  Y.  363.) 

State  of  New  York,  ) 

Suffolk  County,     j 

John  L.  Cook  and  William  H.  Cook  being  duly  and  severally 
sworn  each  for  himself  says,  that  he  is  a  resident  of  the  town  of 
Southampton,  in  the  county  of  Suffolk,  and  liable  to  be  assessed  for 
highway  labor  therein  ;  that  on  or  about  the  14th  day  of  March, 
1887.  deponents  and  others  made  application  by  petition  for  a  public 
road  or  highway  in  said  town  commencing  at  Horse  Mill  Lane  and 
running  in  a  northeasterly  direction  until  it  connected  with  another 
road  specified  in  said  petition,  and  a  copy  of  which  petition  is  hereto 
annexed,  and  that  pursuant  to  said  application  a  jury  was  sum- 
moned and  certified  to  the  necessity  of  such  road  ;  that  on  or  about 
the  30th  day  of  .-\pril,  1887.  Egbert  Hildreth,  Erastus  F.  Post,  and 
Willinm  R.  Perring,  commissioners  of  highway  of  said  town  of 
Southampton,  made  an  order  laying  out  a  highway  in  said  town, 
which  said  order  was  filed  in  the  town  clerk's  office  on  the  day 

of  ,   1887,  and  is  in  words  and    figures  following,  except  as  to 

the  diagram  in  said  order  mentioned,  to  wit  (insert  order  of  com- 
missioners laying  out  road). 


WRIT    OF    CERTIORARI.  353 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

That  the  said  road  laid  out  by  said  commissioners  is  not  the  road 
applied  for  by  petitioners,  or  certified  by  said  jury  to  be  necessary, 
but  a  different  road,  varying  flagrantly  from  the  one  contemplated 
by  deponents  as  applicants  and  by  said  jury  as  deponents  believe. 

That  the  decision  of  the  said  jury  was  in  favor  of  a  road  running- 
from  Horse  Mill  Lake  in  a  straight  line  to  Watson  Lane  at  a  point 
Vilest  of  Watson  Halsey's  house,  as  appears  from  the  evidence  here- 
to annexed  of  Robert  W.  Perry  and  Dennis  H.  Raynor,  members  of 
the  said  jury. 

That  the  said  commissioners  acting  upon  said  petition  and  certifi- 
cate laid  out  a  road  beginning  70  rods  and  more  east  from  the  point 
specified  in  said  petition,  namely.  Horse  Mill  Lane,  and  terminating 
17  rods  west  of  the  point  specified  in  said  petition. 

That  the  diagram  hereto  annexed,  marked  "A,"  shows  the  respect- 
ive routes  of  said  roads,  the  one  applied  for  and  the  one  determined 
and  laid  out  by  the  said  commissioners  from  their  points  of  begin- 
ning to  their  respective  termini,  and  that  both  roads  are  through 
enclosed,  cultivated,  or  improved  lands. 

That  one  of  the  said  highway  commissioners,  namely  Egbert 
Hildreth,  whose  name  appears  subscribed  to  said  order,  is  the  owner 
of  the  land  through  which  the  said  road  was  laid  out,  and  deponent 
believes  that  the  line  of  said  road  was  purposely  changed. 

That  on  or  about  the  3d  day  of  June,  1887,  pending  an  appeal 
from  the  determination  or  order  of  the  said  commissioners,  referees 
to  hear  and  determine  said  appeal  were  duly  appointed  by  the  county 
judge  of  Suffolk  County,  who  thereafter  heard  and  determined  the 
same,  and  delivered  and  filed  their  decision  on  or  about  the  28th 
day  of  March,  1888,  affirming  the  order  of  said  commissioners. 

That  deponent  is  informed  and  believes  that  said  referees  affirmed 
the  determination  of  the  said  commissioners  because  in  their  view 
they  had  no  power  to  review  the  jurisdiction  of  the  said  commis- 
sioners, but  only  the  question  of  the  necessity  of  the  road  applied 
for,  and  certified  to  by  the  jury. 

JOHN  L.   COOK, 
WILLIAM  H.   COOK. 

{Add  acknowledgment.^ 

Precedent  for  Petition  for  Writ. 

To  the  Suprone  Court  of  the  State  New  York  : 

The  petition  of  Louis  Bevier,  supervisor  of  the  town  of  Marble- 
town,  in  the  county  of  Ulster,  respectfully  shows  to  the  court  : 

That  heretofore  an  appeal  was  taken  by  said  Louis  Bevier  on  be- 
half of  said  town  of  Marbletown,  from  the  decision  of  the  board  of 
supervisors  of  Ulster  County,  in  the  equalization  of  assessments  and 
the  correction  of  the  assessment  roll  for  the  year  1885,  and  such  pro- 
ceedings were  taken  thereon,  that  a  trial  and  hearing  were  had  there- 
in by  and  before  the  State  assessors  of  the  State  of  New  York,  James 
L.  Williams.  S.  N.  Wood,  and  John  D.  Ellis,  Esqs. ,  and  after  said 
hearing  and  trial,  said  appeal  was  by  the  State  assessors  dismissed. 

That  a  considerable  amount  of  evidence,  including  a  large  number 
23 


354  WRIT   OF   CERTIORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

of  exhibits,  was  taken  on  said  hearing,  and  that  it  appeared,  by  the 
proof  then  given,  that  the  said  town  of  Marbletown  was  entited  to 
have  a  large  deduction  made  from  its  vakiation,  as  corrected  by  the 
said  board  of  supervisors,  and  the  amount  so  deducted  placed  upon 
certain  towns  or  cities,  and  that  the  failure  of  the  said  State  assessors 
to  so  direct  and  decide,  causes  great  injustice  to  be  done  to  said  town 
of  Marbletown. 

That  this  petitioner  Is  advised  that  the  determination  of  said  State 
assessors  can  be  reviewed  by  a  writ  oi  certiorari,  and  relief  granted 
to  the  said  town  of  Marbletown. 

That  no  previous  application  for  a  writ  of  certiorari hzis  been  made 
in  this  matter. 

Wherefore,  your  petitioner  prays  that  a  writ  of  certiorari  mu.y  he. 
issued  and  allowed  by  this  honorable  court,  directed  to  the  said  State 
assessors,  James  L.  Williams,  S.  N.  Wood,  and  John  D.  Ellis,  com- 
manding them  to  certify  and  return  to  this  court,  all  and  singular, 
the  proceedings,  decisions,  and  actions  of  the  said  State  assessors,  had 
and  made  in  the  premises,  together  with  the  record  of  the  proceedings 
had  before  them  on  the  said  hearing  and  trial  in  this  matter,  includ- 
ing the  evidence  (except  that  in  their  discretion  they  may  return  the 
substance  of  the  exhibits)  and  printed  arguments  submitted  to  them, 
to  the  end  that  said  decision  and  action  of  said  State  assessors  may 
be  reviewed  and  corrected  on  the  merits  by  this  honorable  court,  and 
that  the  aforesaid  errors  of  the  said  State  assessors  may  be  corrected, 
and  that  the  proceedings  had  by  said  State  assessors  may  be  so  re- 
vised, modified,  or  corrected,  so  as  to  direct  what  amount  ought  to 
be  deducted  from  the  corrected  valuation  of  said  town  of  IVIarble- 
town,  as  made  by  said  board  of  supervisors,  and  to  what  town,  city, 
or  ward  the  same  should  be  added,  and  that  your  petitioner  may 
have  such  other  or  further  relief  as  to  the  court  may  seem  just,  and 
that  all  the  proceedings  on  account  of  or  by  reason  of  such  decisions, 
by  any  person,  party,  body  or  board,  be  stayed  until  the  hearing 
and  determination  upon  this  writ. 

LOUIS  BEVIER, 

{Add  verification.)  Supervisor. 

The  usual  practice  is  not  to  require  notice  of  granting  of  the 
writ ;  this  is,  however,  entirely  in  the  discretion  of  the  court,  but 
notice  will  only  be  required  in  case  of  doubt  as  to  the  law  or  prac- 
tice governing  the  particular  case,  and  in  such  case,  where  it  is  de- 
sirable to  bring  all  the  facts  before  the  court  to  aid  it  in  the  exer- 
ci.se  of  discretion  as  to  the  granting  of  the  writ,  affidavits  might 
be  read  by  the  opposing  party.  This  was  so  before  the  codifica- 
tion. People  V.  Supervisors  of  Queens,  i  Hill,  195  ;  People  v.  Judges 
of  Columbia,  2  id.  398  ;  Saratoga  &  W.  R.  R.  Co.  v.  McCoy,  5  How. 
378.  It  is  held  that  it  is  not  generally  neces.sary  that  notice  of  ap 
plication  for  a  certiorari  should  be  given.  Matter  of  Brunt,  I 
Barb.  196;  Matter  of  Woodbine  St.,  17  Abb.  112  ;  Garner  v.  Co7h- 


WRIT   OF   CERTIORARI.  355 


Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 


niissioncrSy  10  How.  181.  An  order  to  show  cause  is  the  usual 
form  of  notice,  and,  it  has  been  held,  should  always  be  obtained 
when  the  writ  is  desired  to  review  municipal  assessments.  People 
V.  City  of  Rochester,  21  Barb.  656;  Albany  Water-Works  Co.  v. 
Mayors  Court,  12  Wend.  292;  Ex  parte  Mayor  of  Albany,  23  id. 
277.  The  practice  is  to  dispense  with  notice  under  the  statute  of 
1880.  People  ex  rel.  U.  &  D.  R.  R.  Co.  v.  Sjnith,  24  Hun,  (i(),  85 
N.  Y.  628. 

Affidavit  in  Answer  to  Application  for  Writ. 

SUPREME  COURT— Kings  County. 


The   People  of   the  State   of  New  York  ex  rel. 
Robert  Crummey, 


a^st.  t"    152  N.  Y.  217. 


George    W.    Palmer,    as    Comptroll<;r   of    the 
City  of  Brooklyn. 


.,} 


County  of  Kings, 

City  of  Brooklyn, 

George  W.  Palmer,  being  duly  sworn,  says,  that  he  is  the  comp- 
troller of  the  city  of  Brooklyn,  the  respondent  above  named  ;  that 
he  has  read  the  affidavit  of  Robert  Crummey,  verified  the  19th  day  of 
January,  1895. 

Deponent  admits  the  allegations  in  folios  one  and  two  of  said 
affidavit  as  to  the  appointment  of  relator  as  assistant  warrant  clerk 
in  the  office  of  the  comptroller  of  the  city  of  Brooklyn,  and  that  he 
held  such  position  until  the  30th  day  of  January,  1895,  or  for  one 
month  after  deponent  became  comptroller  of  the  city  of  Brooklyn, 
and  head  of  the  finance  department.  And  further  admits  that  the 
relator  was  removed  from  his  position  without  a  trial  or  hearing, 
and  that  the  position  held  by  relator  was  not  abolished,  and  that 
upon  his  discharge  another  person  was  appointed  in  his  place  and 
performed  the  duties  formerly  devolving  upon  him. 

Deponent  has  no  knowledge  or  information  sufficient  to  form  a 
belief  as  to  the  allegations  stated  in  folios  three  and  four  of  said 
affidavit. 

Deponent  denies  asset  forth  in  folios  six,  seven,  eight,  and  nine  of 
said  affidavit,  that  on  the  15th  day  of  December,  1895,  ^^^  received 
a  certificate  from  relator  duly  authenticated  and  certified  by  the  city 
clerk  of  Brooklyn,  which  certificate  set  forth  the  volunteer  firemen 
veteran  rights  of  relator,  said  certificate  being  the  customary 
certificate  given  by  the  Brooklyn  Volunteer  Firemen's  Association  to 
its  members,  and  deponent  expressly  alleges  and  charges  the  fact  to 
be  that  he  never  received  at  anv  time  a  communication  from  relator, 
and  that  his  address  was  not  No.  149  Newell  Street,  the  address  to 
which  the  relator  deposes  the  said  certificate  was  sent. 


356  WRIT   OF   CERTIORARI. 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

Deponent  further  says  that  he  did  not  know  prior  to  the  service 
upon  him  in  the  month  of  April,  1895,  ^^  ^'"^^  papers  in  the  above 
entitled  proceeding,  that  relator  claimed  to  be  a  volunteer  fireman  or 
to  be  entitled  to  any  of  the  privileges  of  the  so-called  veteran  acts. 

Deponent  denies  the  allegations  contained  in  folio  nine  to  the  fact 
that  prior  to  relator's  dismissal,  he  notified  the  comptroller  that  he 
was  a  member  of  the  volunteer  fire  department,  and  as  such  was 
entitled  to  a  trial  before  dismissal  ;  and  deponent  further  alleges  that 
the  said  relator  was  discharged  within  thirty  days  after  deponent's 
appointment  as  comptroller,  and  in  accordance  with  the  charter 
provisions,  and  at  the  time  of  said  discharge  deponent  had  no  knowl- 
edge or  notice  whatever  of  the  alleged  claim  of  relator. 

And  further,  answering  said  affidavit,  deponent  denies  the  allega- 
tions in  folio  eleven  to  the  fact  that  relator  did  not  hold  a  confiden- 
tial relation  to  the  appointing  officer. 

Deponent  further  says  that  the  allegations  in  folios  twelve  and 
thirteen  as  to  the  duties  performed  by  relator  are  absolutely  false  and 
untrue,  and  charges  the  fact  to  be  that  the  statements  in  said  affidavit 
contained  concerning  the  duties  of  relator  are  made  in  order  that  the 
court  may  declare  that  the  position  held  by  him  was  not  confidential 
in  its  nature. 

Deponent  denies,  as  stated  in  folio  fourteen,  that  relator's  work 
was  routine  in  its  nature  and  mere  perfunctory  and  clerical. 

Deponent  denies  each  allegation  contained  in  folio  eighteen  con- 
cerning the  duties  performed  by  relator  while  in  the  employ  of  the 
department  of  finance. 

Further  answering,  said  affidavit  deponent  respectfully  shows  to 
this  court  that  the  relator  was  not  a  clerk  in  the  department  of  finance 
upon  whom  devolved  the  ordinary  clerical  duties,  but  that  he  and 
those  immediately  associated  with  him  held  positions  of  trust  and 
confidence,  and  which  only  could  be  filled  by  those  in  whom  the 
comptroller  has  perfect  reliance.  That  it  is  the  duty  of  the  warrant 
clerk,  and  his  assistant  in  the  office  of  the  comptroller,  to  receive 
vouchers,  make  out  warrants  for  their  payment,  and  then  to  pay  out 
these  warrants  to  those  entitled  to  them  ;  and  that  such  duties 
devolved  upon  the  office  held  by  relator,  and  made  it  necessary  for 
the  occupant  thereof  to  have  knowledge  of  the  accounts  and 
finances,  a  method  of  receipts  and  disbursements,  of  the  forms  and 
methods  of  keeping  and  rendering  accounts,  forms  of  accounts,  and 
payrolls  to  be  used  in  the  several  departments,  andknowletlge  of 
the  various  contracts,  and  of  the  proper  certification  and  audit  of 
vouchers.  That  in  the  absence  of  the  warrant  clerk,  the  assistant 
warrant  clerk  was  called  upon  to  perform  his  duties,  and  bore  the 
same  relation  to  his  superior  officer  as  the  deputy  in  a  city  depart- 
ment does  to  the  head  thereof.  It  was  necessary  for  the  relator  to 
draw  warrants,  and  to  pay  the  same  over,  and  to  have  knowledge  of 
the  account  to  which  the  warrants  were  chargeable,  and  to  identify 
the  recipient  of  the  warrant  as  the  one  to  whom  payment  should  be 
properly  made. 

Deponent  further  says  that  when  the  comptroller  came  into  office 
January  i,  1895,  he  found  that  the  duties  of  the  office  of  the  relator 


WRIT   OF   CERTIORARI.  357 

Art.  4.     Petition  and  Notice  of  Application  for  the  Writ. 

were  of  such  a  nature  that  he  had  no  right  or  reason  to  allow  them  to  be 
performed  except  by  a  person  he  knew,  and  in  whom  he  had  full  faith 
and  confidence.  He  realized  that  however  capable  a  clerk  might  be, 
the  position  held  was  such  that  he  might  use  it  to  his  own  advantage, 
and  that  if  unfaithful  to  his  trust  he  would  have  the  opportunity  of 
taking  moneys  from  the  public  treasury.  He  realized  that  although 
the  relator  may  have  been  a  man  in  whom  he  could  have  placed 
trust,  it  was  his  duty  to  the  city,  and  to  his  bondsmen,  and  to  him- 
self to  discharge  relator  and  place  in  his  position  a  man  whom  he 
knew  from  his  personal  experience  could  be  trusted. 

Deponent  further  says  that  the  services  of  relator  were  not  wholly 
of  a  public  character,  but  bore  special  relation  to  the  comptroller 
himself.  • 

Deponent  further  says  that  the  original  appointment  of  the  relator, 
Robert  Crummey,  was  not  after  a  competitive  examination,  but  that 
the  position  held  by  him  was  in  schedule  "A"  of  the  Civil  Service 
Regulations,  and  was  not  subject  to  competitive  appointment  ;  that 
the  relator  was  appointed  by  the  comptroller,  and  that  his  term  of 
office  was  the  pleasure  of  the  comptroller  ;  that  from  the  time  of  the 
original  appointment  of  the  said  relator  to  the  present  time  the  Civil 
Service  list  has  not  been  changed,  and  that  the  position  formerly 
held  by  him,  and  from  which  he  was  discharged,  and  to  which 
another,  upon  his  discharge,  was  appointed,  is  still  in  schedule  "A" 
and  not  subject  to  competitive  examination. 

Deponent  further  says  that  the  reason  that  the  position  held  by 
the  said  relator  is  in  schedule  "A"  is  that  the  position  is  regarded 
as  one  confidential  in  its  nature,  and  one  which  could  not  properly 
be  filled  as  the  result  of  a  competitive  examination  ;  that  the  civil 
service  classifying  power  believed  that  the  warrant  clerks,  in  the 
office  of  the  comptroller,  department  of  finance,  should  be  men 
appointed  by  the  comptroller  in  accordance  with  his  own  pleasure, 
and  therefore  the  office  of  warrant  clerk  was  placed  in  schedule 
"  A  "  and  is  not  subject  to  competitive  examination. 

GEORGE  W.  PALMER. 

{Add  ve7-ification.^ 

Precedent  for  Order  to  Show  Cause  why  Writ  should  Not  be 

Granted. 

SUPREME  COURT. 


In  the  Matter  of  the  Application  of 
Louis  Bevier,  Supervisor  of  the 
Town  of  Marbletovvn  for  a  writ 
of  certiorari. 


On  reading  and  filing  the  verified  petition  of  Louis  Bevier,  praying 
'for  a  writ  of  certiorari  to  review  the  decision  of  the  board  of  State 
assessors  on  an  appeal  from  the  equalization  made  by  the  supervisors 
of  the  county  of  Ulster,  and  showing  that  said  town  is  aggrieved, 
and  that  proper  grounds  exist  for  the  granting  of  an  order  to  show 


cause 


Now,  on  motion  of  Alvah  S.  Newcomb,  attorney  for  relator,  let  the 


358  WRIT   OF   CERTIORARI. 

Art.  5.     The  Writ. 

board  of  State  assessors  (naming  them)  show  cause  at  a  Special  Term 
of  this  court,  to  be  held  at  the  court-house  in  the  city  of  Hudson,  on 
the  1 8th  day  of  May,  1887,  at  the  opening  of  the  court  on  that  day, 
why  a  writ  o{  cer/iorari  should  not  be  granted  to  bring  up  the  pro- 
ceedings of  the  said  board  on  the  hearing  of  the  appeal  by  the  said 
town  of  Marbletown,  from  the  equalization  made  by  the  board  of 
supervisors  of  the  county  of  Ulster.  Let  service  be  made  on  or  be- 
fore May  6.  SAMUEL  EDWARDS, 

Dated  May  5,  1887.  Justice  Supreme  Court. 


ARTICLE  V. 

The  Writ.     §  2129. 

g  2129.    To  whom  writ  directed. 

The  writ  must  be  directed  to  the  body  or  otlicer,  whose  determination  is  to  be  re- 
viewed ;  or  to  any  other  person  having  the  custody  of  the  record  or  other  papers  to  be 
certified  ;  or  to  both,  if  necessary.  Where  it  is  brought  to  review  the  determination 
of  a  board  or  body,  other  than  a  court,  if  an  action  would  lie  against  the  board  or 
body  in  its  associate  or  official  name,  it  must  be  directed  to  the  board  or  body,  by 
that  name ;  otherwise  it  must  be  directed  to  the  members  thereof,  by  their  names. 

The  writ  must  be  directed  to  all  persons  whose  return  is 
necessary  to  enable  the  court  to  determine  the  regularity  or 
validity  of  proceedings  of  the  officer  or  tribunal  sought  to  be  re- 
viewed. Each  officer,  body,  or  board  can  make  return  as  to  his 
part  of  the  matters  done.  But  this  is  confined  to  cases  where 
several  officers  or  boards  are  required  to  perform  separate  acts 
which  make  up  one  official  transaction,  as  assessors,  commis- 
sioners, and  county  judges,  on  proceedings  for  bonding  towns. 
People  V.  Hill,  65  Barb.  170.  But  on  the  other  hand,  where  the 
acts  of  single  officers  do  not  go  to  make  parts  of  and  complete  a 
single  transaction,  and  constitute  one  entire  official  act,  separate 
writs  must  issue  to  each  body  or  officer  whose  acts  contribute  to 
the  completion  of  the  act  complained  of.  Matter  of  Woodbine 
Street,  17  Abb.  112.  Certiorari  must  run  to  a  board  of  village 
trustees,  and  not  to  the  corporation  as  such,  where  the  action  of 
the  trustees  is  sought  to  be  reviewed.  People  v.  Trustees,  i  Hun, 
593.  It  was  formerly  held  that  a  certiorari  to  a  board  of  police 
would  not  run  to  the  individual,  but  to  the  board  as  a  body. 
People  V.  Cholwell,  6  Abb.  151.  The  writ  should  run  to  indi- 
vidual overseers  of  the  poor,  and  not  to  them  in  their  official 
capacity.  Overseers  of  Greenville  v.  Bishop,  2  How.  195.  And 
to  correct  errors  of  a  board  of  assessors   or   revision,  certiorari 


WRIT   OF   CERTIORARI.  359 

Art.  5.     The  Writ. 


must   run   to  the   board   and  not  to  the   corporation.     People  v. 
Mayor,  cited  in  Bliss'  Annotated  Code  under  §  2129.    Where  the 
writ  was  against  a  mere  department  of  the  city  government,  it 
must  be  directed  to  the   members   of  such   board   by  their  indi- 
vidual names  ;  so  held  as  to  the  commissioner  of  public  parks  on 
ground   it   is  not  a    corporation,   and   action    is  not    authorized 
against  it  in  its  official  capacity.     People  v.  Commissioners,  97  N. 
Y.  37.     To  review  an  order  of  commissioners  of  highways,  direct- 
ing the  removal  of  an  encroachment,  it  must  be  directed  to  the 
commissioners.     People  v.   Commissioners  of  Highways,   30  N.  Y. 
72.     But  certiorari  directed  to  different  officers  having  no  joint 
or  common  duties,  but  acting  independently,  is  bad.     People  v. 
Walter,  68  N.  Y.  403.     A  writ  to  review  the  proceedings  of  a 
judge   out  of  court  should  be  directed  to  the  judge,  and   not  to 
the  court  of  which  he  is  a  member.     People  v.  Kelly,  35  Barb. 
444.     The  writ  will  properly  issue  to  a  judge  to  review  proceed- 
ings on   town  bonding,   even  after  the   proceedings  have  been 
completed  and  the  record  filed  with  the  county  clerk.     People  v. 
Smith,  45  N.  Y.  772,    distinguishing  People  v.  Commissioners  of 
East  Hampton,  30  id.  72.     It  is  held  in  People  v.  Hill,  65  Barb. 
170,  that  although   ministerial  acts  enter  into  and  form  part  of 
the  act  complained  of,  the  writ  is  properly  directed  to  the  officer 
or  body  so  acting,  but  that  the  writ  does  not  issue  to  review 
purely  ministerial  acts.     The  writ  may  be  directed  to  one  whose 
term  of  office  has  expired.     Harris  v.    Whitney,  6  How.   175  ; 
People  V.  Hill,  65  Barb.  170  ;  Conover  v.  Devlin,  15  How.  470. 

It  is  said  in  i  Crary's  Special  Proceedings,  160,  on  the  authority 
of  Bacon's  Abridgment,  that  when  the  officer  who  performed  the 
act  was  dead,  the  writ  runs  to  his  executor.  A  certiorari  to  re- 
move the  proceedings  of  three  justices,  affecting  a  town  officer, 
must  be  in  the  name  of  the  people.  Wildy  v.  Washburn,  16 
Johns.  49.  A  certiorari  will  lie  in  the  name  of  the  people  on  the 
relation  of  an  individual  taxpayer  to  review  an  erroneous  assess- 
ment. People  V.  Supervisors  of  Westchester,  57  Barb.  377.  A 
party  who  has  no  interest  in  the  subject-matter  is  not  entitled  to 
the  writ.  Colden  v.  Botts,  12  Wend.  234;  People  v.  Overseers  of 
Berne,  44  Barb.  467;  Starkweather  v.  Seeley,  45  id.  164.  When 
the  relator  attempted  to  review  the  proceedings  of  highway 
commissioners  in  laying  out  a  road,  by  the  writ,  on  the  ground 
that  he   was  an   innkeeper  whose  business  would  be   injured  by 


360  WRIT   OF   CERTIORARI. 


Art.  5.     The  Writ. 


the  diversion  of  travel   from  the   road   on  which   his   hotel  was 
located,  to  the  highway  laid  out,  and  it  appeared  that  he  was  in 
no  way  a  party  to  the  proceeding,  and  did  not  own  property  over 
which  the  new  highway  passed,  the   writ    was    not    sustained. 
People  V.  Schell,  5  Lans.  352.     A  petitioner  for  the  issuing  of  town 
bonds  may  sue  out  the  writ  to  review  the  proceeding.     People  v. 
Wagner,  7  Lans.  467.     It  has  been  held  that  the  writ  should  not 
be  allowed  at  the  instance  of  an  individual  to  review  proceedings 
for  levying  a  tax  which  affect  a  considerable  number  of  persons. 
Matter  of  Fifty-first  Street,  3  Abb.  232.     A  citizen  and  taxpayer 
cannot  intervene  by  certiorari  to  bring  up  the  proceedings  in  an 
action    between  a  county    and    citizens    which    has   been    com- 
promised by  the  parties.     Supervisors  v.  Bowen,  4  Lans.  24.     A 
national  bank  cannot  institute  proceedings  to  review  an  assess- 
ment for  a  tax  to  be  imposed  upon  the  shares  of  its  stockholders. 
Merchants'  National  Bank  v.  Coleman,  41    Hun,  344.     The  writ 
lies   by  a   former  owner  of  premises   sold    for  taxes  to  review 
summary   proceedings    under   city    charter,    begun    by    grantee 
against  former  owners  and  tenant,  under  a  tax  deed  to  recover 
demised  premises.     People  v.  Andrews,  52  N.  Y.  445.     When  re- 
lator dies  and  by  will  gives  an  executor  the  rents  and  profits  in 
lands  affected  by  the  proceedings,  the  latter  may  continue  them. 
People  V.   Robinson,  29  Barb.   TJ.     The    writ    must    run    in  the 
name  of  the  people,  and  cannot  be  prosecuted  in  the  name  of  an 
individual  alone.      Wildy  v.    Washbiiru,   16  Johns.  49  ;  People  v. 
Judges  of  Suffolk,  24  Wend.  249.     It  should  recite  the  names  of 
the  parties  aggrieved  and  set  forth  the  cause  of  complaint  with  the 
proceedings,  and  the  wish  of  the  people  to  be  certified  of  them, 
and  directing  the  judge  or  other  officer  or  tribunal  to  certify  and 
return  the  record  to  the  Supreme  Court  at  a  specified  time  named 
therein  as  the  return  day  of  the  writ,  so  that  the  court  may  then 
and  there  cause  to  be  done  what  of  right  ought  to  be  done,  and 
directed  to  the  tribunal  whose  proceedings  are  sought  to  be  re- 
viewed.    People  V.    Cholwell,  6  Abb.  151.     The  writ   should  be 
tested,   signed,  and    sealed,   and   an   indorsement   made   upon  it 
signed  by  the  clerk,  showing  that  the  writ  had   issued  by  order 
of  the  court.     2   Burr.   Pr.    195;  Mott  \.  Coniniissio7iers  of  High- 
ways, 19  Wend.  640. 

The  order  for  the  writ  is  the  authority  for  the  clerk  to  sign  the 
indorsement  and  affix  the  seal. 


WRIT   OF   CERTIORARI.  361 

Art.   5.     The  Writ. 


Where  a  permanent  official  body  is  created  by  statute  without 
any  limit  as  to  time,  the  court  may  review  the  decision  of  such  a 
board,  although  the  individuals  who  made  it  have  ceased  to  be 
officers,  and  a  record  of  their  proceedings  has  passed  into  the 
custody  of  some  other  authority.  In  such  a  case  the  person 
holding  the  record  should  be  made  party  to  the  writ,  in  order  to 
place  the  record  before  the  court.  People  ex  rel.  Heiser  v.  Gilon, 
121  N.  Y.  559,  31  St.  Rep.  894.  If  the  record  of  decision  which 
is  desired  to  be  reviewed  is  in  the  hands  of  persons  other  than 
those  making  the  decision,  the  writ  may,  by  the  authority  of  § 
2129,  Code  Civil  procedure,  be  sent  to  any  body  which  has  any 
paper  to  be  certified  in  relation  to  the  writ.  People  ex  rel.  Cook 
v.  Hildretli,  5  Supp.  30S.  Where  the  writ  issues  against  the 
common  council  of  the  city  to  review  its  decision  in  designating 
a  newspaper  for  public  printing,  the  mayor  of  the  city  is  properly 
made  a  party,  although  he  had  no  voice,  vote,  or  veto  in  the  de- 
cision, as  he  was  required  by  the  charter  of  the  city  to  authen- 
ticate the  acts  of  the  common  council.  People  ex  rel.  Francis  v. 
Mead,  17  St.  Rep.  661,  2  Supp.  114.  Though  §  2136,  Code  Civil 
Proceedure,  provides  that  certiorari  may  issue  against  an  officer 
whose  term  of  office  has  expired,  yet  where  the  office  is  a  con- 
tinuing public  office,  such  as  a  comptroller  of  the  State,  it  prop- 
erly issues  to  the  person  incumbent  of  the  office  to  review  the 
proceedings  of  his  predecessor,  under  the  provisions  of  §  2129. 
Matter  of  the  Tax  Commissioners  v.  Tiffany  &  Co.,  80  Hun,  488, 
62  St.  Rep.  394,  30  Supp.  494.  The  provision  in  §  2129,  Code 
Civil  Procedure,  that  the  writ  may  issue  to  any  person  having  the 
custody  of  the  record,  or  other  papers  to  be  certified,  as  well  as 
to  the  board  or  persons  making  the  decision  to  be  reviewed,  is 
intended  to  prevent  a  failure  of  justice  "  through  the  shuffling  of 
the  roll  around  from  one  person  or  officer  to  another,  before  its 
purpose  could  be  made  effectual  by  its  service."  Thus  in  review- 
ing the  proceedings  of  assessors,  the  town  clerk  having  possession 
of  the  assessment-roll  is  a  proper  party.  People  ex  rel.  v.  Biir- 
hans,  25  Hun,   186. 

Where  the  respondent  in  certiorari  is  a  mere  department  of  the 
city  government,  and  no  action  could  be  brought  against  it  by 
its  official  name,  a  writ  directed  to  such  board  is  irregular;  it 
should  be  directed  to  the  members  of  the  board  "  by  their  names." 
People  ex  rel.  R.  R.  Co.  v.  Board  of  Commissioners,  etc.,  97  N.  Y. 


362 


WRIT   OF   CERTIORARI. 


Art.   5.     Tlie  Writ. 


43.  It  seems  that  the  direction  of  the  writ  of  certiorari  to  per- 
sons who  composed  a  majority  of  the  Democratic  members  of 
a  board  of  supervisors,  which  majority  made  the  determination 
complained  of,  is  not  improper  under  provisions  of  §  2129. 
People  ex  rel.  Baldzvin  v.  Barnes,  17  App.  Div.  202. 

It  seems  that  certiorari  issued  to  the  supervisors  of  a  county 
commanding  them  to  certify  a  return  of  their  proceedings  in  the 
designation  of  a  paper  for  the  publication  of  the  session  laws, 
may  be  directed  to  the  persons  composing  the  majority  of  the 
members  of  the  board  of  supervisors.  People  ex  rel.  Baldzvin  v. 
Barnes,  ij  App.  Div.  202.  Where  the  city  department  whose  de- 
cision is  sought  to  be  reviewed  is  an  incorporated  body,  able  to 
sue  or  be  sued  in  its  own  name,  the  writ  of  certiorari  properly 
issues  against  it,  under  its  corporate  name.  People  ex  rel.  Fitz- 
gibbons  v.  Trustees,  i  App.  Div.  187,  distinguishing  97  N.  Y.  37, 
supra.  Where  the  body  whose  decision  is  to  be  reviewed  is 
still  legal  custodian  of  the  record  thereof,  and  has  not  delivered 
the  same  to  any  other  party  by  virtue  of  a  statute,  the  writ 
of  certiorari  lies  against  it.  People  ex  rel.  N.  V.  O.  &  W.  R.  R. 
Co.  V.  Chapin,  3  St.  Rep.  725,  distinguishing  People  ex  rel.  Marsh 
V.  Delanev,  49  N.  Y.  655  ;  People  ex  rel.  Law  v.  Commissioners, 
9  Hun,  609;  People  ex  rel.  Weeks  v.  Supervisors,  82  N.  Y.  275. 
The  writ  must  be  issued  under  seal  of  the  court,  but  the  omis- 
sion of  the  seal  does  not  make  the  writ  void  and  the  defect  may 
be  cured  by  amendment.  People  ex  rel.  H.  &  M.  R.  R.  Co.  v.  As- 
sessors of  Herkimer,  6  Civ.  Proc.  297.  This  case  arose  under  the 
Tax  Law. 

Precedent  for  Order  for  Writ  with  Stay. 

At  a  SpecialTerm  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  Supreme  Court  Chambers  at  tlie  City  Hall  in  the  city 
of  Kingston,  county  of  Ulster,  on  the  7th  day  of  December,  1886  : 

Present  : — Hon.  Samuel  Edwards,  Justice. 


In    the     Matter    of    the    Application    of    Louis 
Bevier,    Supervisor  of   the  Town   of   Marble-  '^ 
town,  for  a  writ   of  certiorari  to    the   Board 
of  Supervisorsgof  Ulster  County. 


On  reading  and  filing  the  petition  of  Louis  Bevier,  of  the  saidtown 
of  ALirbletown,  the  above  applicant,  verified  on  the  7th  day   of  De- 


WRIT    OF    CERTIORARI.  363 

Art.  5.     The  Writ. 

cember,  1886,  on  motion  of  A.  S.  Nevvcomb,    attorney   for  stiid  ap- 
plicant, it  is 

Ordered,  that  a  writ  of  certiorari,  as  prayed  for  in  the  said  petition, 
be  issued,  directed  to  the  board  of  supervisors  of  the  county  of  Ulster. 

That  said  writ  be  returnable  within  twenty  days  after  service 
thereof,  at  the  office  of  the  clerk  of  the  Supreme  Court  in  and  for 
Ulster  County,  in  the  city  of  Kingston,  and  that  said  writ  be  allowed 
and  signed  and  sealed  by  the  clerk  of  this  court. 

The  court  hereby,  in  its  discretion,  dispenses  with  notice  of  the 
application  for  the  writ  in  this  matter. 

it  is  further  ordered  that  the  execution  of  the  determination  by  said 
board  of  supervisors  to  impose,  levy,  and  assess  upon  the  taxable 
property  of  said  town  of  ]\Iarbleto\vn,  and  collect  from  said  town 
the  sum  of  $3, 109. 81,  to  apply  toward  the  payment  of  the  alleged 
costs  and  expenses  of  said  board  of  supervisors  as  respondents  in 
appeals  by  the  said  town  of  Marbletown  and  the  city  of  Kingston, 
to  the  State  assessors  of  the  State  of  New  York,  from  the  decision  of 
said  board  in  the  equalization  and  correction  of  the  assessment-rolls 
of  the  different  towns  in  said  county  of  Ulster,  and  the  said  city  of 
Kingston,  in  the  year  1885,  be  stayed,  and  the  said  board  of  super- 
visors is  hereby  restrained  and  enjoined  from  imposing,  levying,  or 
collecting  said  sum,  or  inserting  the  same  in  the  tax-roll  of  said  town 
of  Marbletown  for  the  purpose  aforesaid,  and  said  board  of  super- 
visors are  further  restrained  and  enjoined  from  inserting  in  the  tax- 
roll  of  said  town,  or  levying  or  assessing  any  sum  upon  the  taxable 
property  of  said  town,  for  the  costs  or  expenses  of  the  respondent  on 
said  appeal,  pending  this  certiorari,  or  until  the  further  order  of 
this  court. 

That  the  relator,  being  a  public  officer,  and  the  writ  issuing  on 
behalf  of  a  municipal  corporation,  no  security  is  required. 

Enter  in  Ulster  County.  SAMUEL  EDWARDS, 

Justice  Supreme  Court. 

Order  for  Writ  of  Certiorari. 

At  a  Special  Term  of  the  Supreme  Court,  held  in  and  for  the  county 
of  Kings,  at  the  county  court  house,  in  the  city  of  Brooklyn, 
on  the  25th  day  of  January,   1895  : 

Present  : — Hon.  William  J.  Gaynor,  Justice. 

People  ex  ret.  Philip  E.  Miller, 

""S^^-  I- 149  N.  Y.  549. 

Frederick   W.  Wurster,   Commissioner  of  the 
Fire  Department  of  the  City  of  Brooklyn. 

On  reading  and  filing  the  annexed  petition  of  Philip  E.  Miller, 
verified  the  24th  day  of  January,  1895,  and  the  affidavit  of  Margaret 
Miller,  sworn  to  the  24th  day  of  January,  1895,  and  on  motion  of 
Edward  F.  O'Dwyer,  attorney  for  the  relator,  it  is 


364  WRIT   OF   CERTIORARI. 

Art.  5.     The  Writ. 

Ordered,  that  a  writ  of  certiorari  issue  out  of  and  under  the  seal  of 
this  court,  directed  to  said  Frederick  W.  Wurster,  commissioner  of 
the  fire  department  of  the  city  of  Brooklyn,  as  prayed  for  in  the  said 
petition. 

Enter.  W.  J.  G., 

Granted  Jan.  25th,  1893.  /  S.  C. 

HENRY  C.  SAFFEN, 

Clerk. 

Order  Granting  Writ. 


In  the  Matter  of  the  Application  of  the   People 
of  the  State    of    New  York    by    the    Forest 
Commission,    and    the    Forest     Commission  1  . ,-,  -vr   y    -6 
for   a    Writ    of    Certiorari     to     Hon.    Frank  f     J"      '      '  J  ' 
Campbell,  Comptroller  of  the  State  of  New- 
York. 

On  reading-  and  filing  the  petition  of  the  People  of  the  State  of 
New  York,  by  the  Forest  Commission  of  the  State  of  New  York,  and 
of  the  said  Forest  Commission,  duly  verified  by  William  P.  Cant- 
well,  the  attorney  for  the  said  People  and  for  the  said  Forest  Com- 
mission, which  verification  was  matle  on  the  19th  day  of  April,  1892, 
and  on  motion  of  William  P.  Cantwell,  the  said  attorney  of  said 
petitioner,  it  is 

Ordered,  that  a  writ  of  certiorari  as  prayed  for  in  said  petition  be 
issued  directed  to  Hon.  Frank  Campbell,  Comptroller  of  the  State  of 
New  York  ;  and  that  said  writ  be  allowed,  signed,  and  sealed  by  the 
clerk  of  this  court  in  and  for  the  county  of  Albany.  The  court 
hereby,  in  its  discretion,  dispenses  with  notice  of  the  application  for 
the  writ  in  this  matter. 

Enter  in  Albany  County.  JOHN  R.   PUTNAM, 

/.  6".  C. 
WM.  P.  CANTWELL, 

Attorney  for  Petitioners, 

Malo?ie,  N.  V. 

Order  with  Stay. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  Albany,  in  the  city  of  Albany,  county  of  Albany,  on  the 
15th  day  of  September,  1887  : 

Present  : — Hon.  C.  R.  Ingalls,  Justice. 


In  the  Matter  of  the  Application  of  Charles  (1. 
Burnham,  for  a  Writ  of  Certiorari  to  I'xhvard 
F.  Jones  and  others,  Commissioners  of  the 
Land  Office. 


112  N   Y.6i{ 


On  reading  and  tiling  the  petition  of  Charles  G.  Burnham,  of  the 
city  of  New  York,  the  above  application,  verified  on  the  15th  day  of 


WRIT    OF   CERTIORARI.  365 

Art.  5.     The  Writ. 


December,  1887,  and  on  motion  of  Morgan  &  French,  attorneys  for 
the  said  apphcant,  it  is 

Ordered,  that  a  writ  of  certiorari,  as  prayed  for  in  the  said  petition, 
be  issued,  directed  to  Edward  F.  Jones,  James  W.  Husted,  Fred- 
erick Cook,  Alfred  C.  Chapm,  Lawrence  J.  Fitzgerald,  Denis  O'Brien, 
and  Elnathan  Sweet,  Commissioners  of  the  Land  Office  ;  that  said 
writ  be  returnable  within  twenty  (20)  days  after  service  thereof,  at  the 
office  of  the  clerk  of  the  Supreme  Court  in  and  for  the  county  of 
Albany,  in  the  city  of  Albany,  and  that  said  writ  be  allowed  and 
signed  and  sealed  by  the  clerk  of  this  court.  The  court  hereby  dis- 
penses with  notice  for  application  of  the  writ  in  this  matter. 

It  is  further  ordered,  that  the  execution  of  the  determination  by- 
said  Commissioners  of  the  Land  Office,  to  make  the  grant  applied 
for  by  the  Bartholomay  Brewing  Company  and  referred  to  in  the 
annexed  petition,  be  and  it  hereby  is  stayed,  and  the  said  commis- 
sioners above  named  are  hereby  severally  restrained  and  enjoined 
from  executing  or  delivering  patent,  deed,  or  grant,  by  way  of 
quit-claim  or  otherwise,  to  the  said  Bartholomay  Brewing  Company, 
of  the  land  under  water  described  in  the  annexed  petition  in  front  of 
and  adjacent  to  the  premises  claimed  by  the  said  petitioner  pending 
this  certiorari,  or  until  the  further  order  of  this  court. 

ROBERT  H.  MOORE, 

{Certification.)  Clerk. 

Precedent  for  Writ. 

The  People  of  the  State  of  Neiv  York,  on  the  relation  of  Louis  Bevier, 
Supervisor  of  the  town  of  Marbletown,  to  the  Board  of  Supervisors 
of  the  County  of  Ulster  : 

Where.vs,  We  have  been  informed  by  the  petition  of  Louis  Bevier, 
as  such  supervisor,  verified  the  7th  day  of  December,  1886,  that  the 
said  town  of  Marbletown  and  the  city  of  Kingston,  which  is  also  lo- 
cated in  said  county  of  Ulster,  did  each,  in  the  year  1885,  take  an 
appeal  to  the  State  assessors  of  the  State  of  New  York,  from  the  de- 
cision of  the  board  of  supervisors  of  the  county  of  Ulster,  in  the 
equalization  and  correction  of  the  assessment-rolls  of  the  different 
towns  of  said  county,  and  of  the  said  city,  for  the  year  1885,  and 
such  proceedings  were  had  in  said  appeals  that  the  same  have  been 
dismissed  by  the  State  assessors. 

That  at  the  annual  session  of  the  board  of  supervisors  of  the 
county  of  Ulster,  for  the  year  1886,  the  said  board  fixed  and  deter- 
mined and  audited  the  amount  of  costs  and  expenses  of  said  board, 
as  respondent  on  said  appeal,  at  the  sum  of  $21,446.99,  and 
further  determined  to  levv  and  assess  such  amount  as  follows  : 
$18,337.98  on  taxable  property  of  said  city,  and  $3,109.81  upon  the 
taxable  property  of  said  town  of  INIarbletown. 

That  injustice  has  been  done  said  town  of  Marbletown  in  that  the 
whole  of  said  costs  and  expenses  have  been  assessed  on  said  town 
and  city,  and  in  that  said  costs  and  expenses  are  largely  made  up  of 
items  which  are  not  legal  costs  or  expenses,  and  which  cannot  be 


366  WRIT    OF   CERTIORARI. 


Art.   5.     The  Writ. 


leo-ally  collected  by  said  respondents  on   said  appeal,    against   or 
from  said  town  of  Marbletown. 

That  said  petition,  among-  other  things,  prays  that  a  writ  of  cer- 
tiorari issue  out  of  this  court  to  bring  up  the  proceedings  had  by  and 
before  the  said  board  of  supervisors  in  reference  to  said  costs  and  ex- 
penses, and  the  audit  thereof,  and  the  items  composing  the  same, 
and  the  assessment  thereof  upon  said  city  and  town  of  Marbletown, 
to  the  end  that  the  same  might  be  reviewed,  and  the  error  so  alleged 
might  be  corrected,  and  the  said  town  of  Marbletown  might  be  re- 
lieved from  the  payment  of  anything  more  than  its  proper  propor- 
tion of  said  costs  and  expenses,  or  from  the  payment  of  any  portion 
thereof  which  is  not  legal  costs  and  expenses,  and  for  any  further  or 
other  relief,  as  may  be  just  and  proper. 

We,  being  willing  to  be  certified  of  your  proceedings  as  such  board 
of  supervisors  in  making  audit  of  such  costs  and  expenses,  and  in 
assessing  the  same,  and  in  all  things  relating  thereto,  do  command 
you,  that  within  twenty  days  after  the  service  hereof  upon  you,  you 
do  certify  and  return  to  us,  at  the  office  of  the  clerk  of  the  county  of 
Ulster,  all  and  singular  your  proceedings,  decisions,  and  actions,  in  the 
premises,  with  the  dates  thereof,  and  all  and  singular  the  evidence, 
documents,  records,  claims,  bills,  or  papers  before  you,  or  which 
were  submitted  to  you,  concerning  the  said  matter,  and  all  the  res- 
olutions, protests,  affidavits,  and  papers  offered  to  or  filed  with  you 
as  such  board,  in  relation  thereto,  with  the  rulings  or  decisions  of 
said  board,  or  its  chairman,  including  the  corrected  valuation  of  the 
real  estate  as  equalized  in  said  city  and  town  of  Marbletown  for  the 
years  1885  and  1886,  and  also  the  amount  of  personal  property  as- 
sessed in  said  city  and  town  of  Marbletown  by  said  board  for  said 
years,  and  all  action  in  relation  thereto  sustained  by  said  board,  to 
the  end  that  said  decisions  and  actions  of  said  board  may  be  re- 
viewed and  corrected  on  the  merits  by  this  court,  and  the  aforesaid 
error  of  said  hoard  may  be  corrected  according  to  law,  and  that  the 
said  action  or  determination,  audit  or  allowance,  may  be  reviewed 
or  corrected  according  to  law,  as  to  the  court  may  seem  just. 

Witness,  Hon.    Samuel  Edwards,    one  of  the  justices  of  the 
[l.  s.]        Supreme  Court,  at  the  city  hall,  in  the  city  of  Kingston,  on 
the  7th  day  of  December,  1886. 

A.  S.  NEWCOMB.  JACOB  D.  WURTS, 

Attorney  for  Relator.  County  Clerk. 

{^Indorse  allowance  o/ivf  it  by  fudge  granting  it. ) 

Writ. 


The  People  of  the  State  of  New  York,  on  the 
relation  of  Charles  G.  Burnham,  of  the 
City  of  New  York,  to  Edward  F.  Jones, 
James  VV.  Husted,  Frederick  Cook,  Alfred 
C.  Chapin,  Lawrence  J.  Fitzgerald,  Denis 
O'Brien,  and  Elnathan  Sweet,  Commis- 
sioners of  the  Land  Office. 


[12  N.  Y.  618. 


Whereas,  we  have  been  informed  by  the  petition  of  Charles  G 


WRIT   OF   CERTIORARI.  367 

Art.  5.     The  Writ. 

Burnham,  verified  on  the  15th  day  of  December,  1887,  that  a  hear- 
ing- has  been  had  heretofore  before  you,  as  Commissioner  of  the  Land 
Office,  upon  a  certain  application  by  the  Bartholomay  Brewing  Com- 
pany for  a  grant  of  lands  under  the  waters  of  Lake  Ontario,  adjacent 
to  and  in  front  of  certain  premises  in  the  village  of  Charlotte,  county 
of  Monroe  and  State  of  New  York,  and  that  the  said  Charles  G. 
Burnham  appeared  upon  the  said  hearing  and  duly  objected  to  the 
issuing  of  the  said  grant  in  form  and  to  the  extent  applied  for,  on 
the  ground  that  the  said  application  covered  lands  under  the  water 
in  front  of  and  adjacent  to  premises  owned  in  fee-simple  by  said 
Charles  G.  Burnham,  and  of  which  lands  the  said  Bartholomay 
Brewing  Company  was  not  the  owner,  and  after  hearing  the  parties 
and  after  maps,  certified  copies  of  deeds,  original  deeds,  exhibits, 
and  other  papers  and  evidences  had  been  submitted,  the  said  appli- 
cation of  the  said  Bartholomay  Brewing  Company  was  granted,  and 
that  injustice  thereby  has  been  done  to  the  petitioner,  in  that  lands 
under  water  in  front  of  and  adjacent  to  the  premises  of  which  the 
petitioner  is  the  sole  owner  in  fee-simple,  have  been,  or  are  about  to 
be,  granted  to  the  Bartholomay  Brewing  Company  in  violation  of  the 
law  and  of  the  rights  of  the  said  petitioner  ;  and  the  said  petitioner, 
among  other  things,  prays  that  a  writ  of  ceriiorari  issue  out  of  this 
court  to  bring  up  the  proceedings  had  by  and  before  you  as  to  said 
commissioners  in  reference  to  the  subject-matter,  to  the  end  that  the 
same  might  be  reviewed  and  the  errors  so  alleged  might  be  cor- 
rected, or  for  any  other  or  further  relief  as  may  be  just  and  proper. 

We  being  willing  to  be  certified  of  your  proceedings  as  such  com- 
missioners, in  making  the  determination  to  grant  the  application  of 
the  said  Bartholomay  Brewing  Company  as  aforesaid,  and  in  all 
things  relating  thereto,  we  do  command  you  that  within  twenty  (20) 
days  after  the  service  thereof  upon  you,  you  do  certify  a  return  to 
us  at  the  office  of  the  clerk  of  the  county  of  Albany,  in  the  city  of 
Albany,  all  and  singular  your  proceedings,  decisions,  and  actions  in 
the  premises,  with  the  dates  thereof,  and  all  and  singular  the  evi- 
dence, documents,  records,  deeds,  maps,  and  all  other  jiapers  before 
you  or  which  were  submitted  to  you  concernmgthe  said  matter,  or 
papers  offered  or  filed  with  you  as  such  commissioners  in  relation 
thereto,  with  your  determination  as  said  commissioners,  to  the  end 
that  your  said  decisions  and  actions  as  said  commissioners  may  be 
reviewed  and  corrected  on  the  merits  by  this  court  ;  and  that  the 
aforesaid  error  of  said  commissioners  maybe  corrected  according  to 
law,  and  that  the  said  action  or  determination  of  the  said  commis- 
sioners may  be  reviewed  or  corrected  according  to  law  as  to  ther 
court  may  seem  just. 

Witness,  the  Hon.  Charles  R.  Ingalls,  one  of  the  justices  of  the 
r  1  Supreme  Court,  at  the  court-house,  in  the  city  of  Albany, 
L^'  ^"J        on  the  15th  day  of  December,  1887. 

ROBERT  H.  MOORE, 

[Indorse  al/ummce  by  Judge. )  Clerk. 

A  certiorari  to  review  the  proceedings  of  tax  commissioners- 
should  not   require   the   return   of  records  not  affecting  the   par- 


368  WRIT   OF   CERTIORARI. 


Art.  6.     Proceedings  Upon  the  Writ. 


ticular  property  of  relator.  Facts  affecting  other  property,  re- 
lied on  to  show  disproportionate  valuation,  should  be  left  to  be 
established  by  evidence.  People  v.  Tax  Commissioners,  lo  Abb. 
N.  C.  35.  It  is  too  late  to  obtain  a  writ  of  certiorari  against 
a  board  of  supervisors  to  review  their  proceedings  in  allowing  a 
claim  alleged  to  be  illegal,  if  the  warrant  for  the  collection  of 
taxes  has  been  signed,  and  the  money  collected.  People  v.  Super- 
visors of  Rensselaer,  34  Hun,  266.  The  writ  will  not  issue  to  re- 
view the  determination  of  canal  appraisers  by  one  whose  prop- 
erty has  been  taken.  The  remedy  is  by  a  hearing  before  the 
canal  board.     People  v.  Dennison,  28  Hun,  328. 

ARTICLE  VI. 

Proceedings   Upon  the  Writ.     §§  2132,   2130,  2131,  2137. 

§  2132.  When  and  where  writ  returnable. 

A  writ  of  certiorari  must  be  made  returnable,  within  twenty  days  after  the  service 
thereof,  at  the  office  of  the  clerk  of  the  court.  If  it  was  issued  from  the  Supreme 
Court,  it  must  be  made  returnable  at  the  office  of  the  clerk  of  the  county  designated 
therein,  wherein  the  determination  to  be  reviewed  was  made ;  and  if  the  county 
designated  in  the  writ  is  not  the  proper  county,  the  court,  upon  motion,  may  amend 
the  writ  accordingly.  Thereupon  all  papers  on  file  must  be  transferred  to  the  clerk  of 
the  county  where  the  writ  is  made  returnable  by  the  amendment. 

§  2130.  Mode  of  Service. 

A  writ  of  certiorari  must  be  served  as  follows,  except  where  different  directions,  re- 
specting the  mode  of  service  thereof,  are  given  by  the  court  granting  it : 

1.  Where  it  is  directed  to  a  person  or  persons  by  name,  or  by  his  or  their  official 
title  or  titles,  or  to  a  municipal  corporation,  it  must  be  served  upon  each  officer  or 
other  person,  to  whom  it  is  so  directed,  or  upon  the  corporation,  in  the  same  manner 
as  a  summons  in  an  action  brought  in  the  Supreme  Court,  except  as  prescribed  in  the 
next  two  subdivisions  of  this  section. 

2.  Where  it  is  directed  to  a  court,  or  to  the  judges  of  a  court,  having  a  clerk  ap- 
pointed pursuant  to  law,  service  upon  the  court,  or  the  judges  thereof,  may  be  made 
by  filing  the  writ  with  the  clerk. 

3.  Where  it  is  to  be  served  upon  any  other  board  or  body,  or  upon  the  members 
thereof,  it  may  be  served  as  prescribed  in  §  2071  of  this  act,  for  service,  upon  a  like 
board  or  body,  of  an  alternative  writ  or  mandamus. 

See  §2071;   2    K.    S.    602,  §  68   (2    Edm.  625),  and  2  R.  S.  599,  §  45  (2  Kdm.  621). 

§  2131.  Stay  of  proceedings. 

Except  as  prescribed  in  this  section,  a  writ  of  certiorari  does  not  stay  the  execution 
of  the  determination  to  be  reviewed,  or  affect  the  power  of  the  body  or  officer,  to 
which  or  to  whom  it  is  addressed.  The  court,  which  grants  the  writ,  may  in  its  dis- 
cretion, and  upon  such  terms,  as  to  the  security  or  otherwise  as  justice  requires,  direct 
by  a  clause  in  the  writ,  or  by  a  separate  order,  that  the  execution  of  the  determination 
be  stayed,  pending  the  certiorari,  and  until  the  further  direction  of  the  court.     A  bond. 


WRIT   OF   CERTIORARI.  369 


Art.  6.     Proceedings  Upon  the  Writ. 


undertaking,  or  other  security,  given  to  procure  such  a  stay,  is  valid  and  effectual,  ac- 
cording to  its  terms,  in  favor  of  a  person  beneficially  interested  in  upholding  the  de- 
termination to  be  reviewed,  who  is  admitted  as  a  party  to  the  special  proceeding,  as 
prescribed  in  §  2137  of  this  act. 

§  2137.  [Am'd,  1895.]    When  third  person  may  be  brought  in. 

Upon  the  application  of  a  person,  specially  and  beneficially  interested  in  upholding 
the  determination  to  be  reviewed,  the  court  may,  in  its  discretion,  admit  him  as  a  party 
defendant  in  the  special  proceedings,  upon  such  terms  as  justice  requires.  And  a 
term  of  the  appellate  division  of  the  Supreme  Court,  at  which  the  cause  is  noticed  for 
hearing,  and  is  placed  upon  the  calendar,  may,  in  a  proper  case,  direct  that  notice  of 
the  pendency  of  the  special  proceeding  be  given  to  any  person,  in  such  a  manner  as  it 
thinks  proper ;  and  may  suspend  the  hearing  until  notice  is  given  accordingly. 

Note. — In  proceedings  to  review  assessments  under  chap.  269, 
Laws  1880,  the  return  of  the  writ  and  all  other  proceedings  must 
be  in  compliance  with  the  statute,  and  not  according  to  the  prac- 
tice under  the  common-law  certiorari,  as  set  forth  in  the  Code 
Civil  Procedure.    Peo.  ex  rel.  N.  V.  &  R.  R.  Co.v.  Low,  40  Hun,  i  'j'j. 

It  is  said  in  Mott  v.  Commissioners,  19  Wend.  640,  that  a  copy 
of  the  order  allowing  the  writ  should  be  served  with  it,  or  there 
should  be  an  indorsement  that  it  is  allowed,  but  that  error  in 
that  respect  may  be  amended.  The  proper  practice,  and  that 
universally  adopted,  is  to  have  the  writ  indorsed  in  form  given  in 
precedent.  The  simple  and  usual  custom  is  to  have  two  or  more 
writs  signed  by  clerk  and  sealed,  one  for  service,  the  other  as  a 
duplicate  original  to  be  retained  by  the  attorney,  although  this, 
of  course,  is  not  necessary.  It  was  also  held,  in  People  v.  Perry, 
16  Hun,  461.  that  a  copy  of  the  aflfidavit  on  which  a  writ  is 
granted  need  not  be  served  on  respondent.  In  this  respect,  how- 
ever, the  usual  practice  is  to  serve  a  copy  of  the  afifidavit  together 
with  a  copy  of  the  order  granting  the  writ,  and  the  writ  itself, 
thus  giving  the  respondent  copies  of  all  the  papers  in  the  matter. 

While  §  2 1 3 1  provides  for  a  stay  of  proceedings  on  the  common- 
law  writ  of  certiorari,  yet  this  section  has  no  application  in  pro- 
ceedings under  the  statutory  writ  to  review  an  assessment  under 
Laws  1880,  chap.  269,  which  act  by  §  2  declares  that  "A  writ  of 
certiorari  allowed  under  this  act  .shall  not  stay  the  proceedings 
of  the  assessors,  or  other  persons  to  whom  it  is  directed,  or  to 
whom  the  assessment-roll  may  be  delivered,  to  be  acted  upon 
according  to  law."  People  v.  Coleman,  48  Hun  604,  i  Supp.  112, 
16  St.  Rep.  135,  citing  People  v.  Assessors  of  Greenburg,  106  N. 
Y.  671  ;  see,  also.  People  ex  rel.  N.  V.,  etc.,  R.  C.  Co.  v.  Board  of 
Aldermen,  10  Abb.  N.  C.  33. 

Section  2131,  Code  Civil  Procedure,  providing  for  a  stayof  pro- 
24 


370  WRIT   OF   CERTIORARI. 

Art.  6.     Proceedings  Upon  the  Writ. 

ceedings  under  the  determination  sought  to  be  reviewed,  seems 
to  require  that  such  order  for  stay  should  accompany  the  writ,  and 
be  a  part  of  it.  It  seems  that  it  will  be  refused  where  much 
time  has  elapsed  since  the  issuance  of  the  writ.  People  ex  reL 
N.  v.,  etc.,  R.  R.  Co.v.  Board  of  Aldcnneji,  lo  Abb.  N.  C.  34. 
Staying  of  proceedings  by  separate  order  was  affirmed  on 
appeal  in  People  ex  rel.  Burhans  v.  Sjipervisors,  19  Week.  Dig.  208. 
The  writ  does  not  operate  per  se  as  a  stay.  People  v.  Super- 
visors  of  Albany,  23  Week.  Dig.  568. 

Precedent  for  Order  Staying  Proceedings. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  City  Hall,  etc, 

December  i,  1886  : 
Present : — Hon.  Samuel  Edwards,  Justice. 

SUPREME  COURT. 

• 1 

The   People  of  the  State  of  New  York  ex  ret. 
Louis  Bevier 

agst. 

James  L.  Williams,  S.  N.  Wood,  and  John  D. 
Ellis,  State  Assessors  of  the  State  of  New  York. 


On  reading  and  filing  the  petition  of  Louis  Bevier,  the  applicant  for 
a  writ  of  certiorari  to  the  above-named  defendants,  verified  December  i, 
1883,  and  on  granting  an  order  for  said  writ,  it  is  ordered  that  the  Board 
of  Supervisors  of  the  county  of  Ulster  be  stayed  from  inserting  in  the 
tax-roll  and  levying  on  the  town  of  Marbletown  any  sum  for  costs  and 
expenses  incurred  on  the  appeal  from  the  equalization  made  by  the  said 
board  in  1885,  taken  by  said  town  of  Marbletown,  until  the  determina- 
tion of  the  proceeding  granted  and  allowed,  as  hereinbefore  set  forth, 
or  from  in  any  wise  enforcing  the  collection  of  such  sum,  or  any  part 
thereof,  or  any  of  the  expenses  of  said  appeal  which  have  been  taxed  at 
$4,250,  vmtil  such  hearing  and  determination  on  said  writ.  This  order 
is  on  condition  that  the  relator  herein  bring  on  this  cause  for  hearing  at 
the  next  General  Term  of  this  court,  to  be  held  at  the  city  of  Albany  on 
the  25th  day  of  January  next,  unless  the  hearing  shall  be  postponed  by 
the  court.  SAMUEL  EDWARDS, 

Enter  in  Ulster  County.  Justice  Supreme  Court. 

A  motion  to  quash  a  writ  of  certiorari  can  only  be  made  in  the 
district  where  the  writ  is  returnable,  or  in  a  county  adjoining  the 
district.     People  v.  Cooper,  57  How.  463. 

After  having  obtained  jurisdiction  of  a  certiorari,  it  is  dis- 
cretionary for  the  Supreme  Court  to  quash   the  writ  or  remand 


WRIT   OF   CERTIORARI.  37I 


Art.  6.     Proceedings  Upon  the  Writ. 


the  same  on  cause  shown,  or  to  proceed  to  its  disposition,  and 
an  order  refusing  to  quash  is  not  appealable  to  the  Court  of  Ap- 
peals. Jones  V.  People,  9  Week.  Dig.  254  (Ct.  of  App.).  Where, 
after  return  made,  the  court  is  satisfied  that  the  writ  was  improvi- 
dently  granted,  or  that  justice  and  equity  or  a  regard  to  consid- 
erations of  public  policy  require,  it  will  be  dismissed  without 
passing  on  the  questions  intended  to  be  raised.  People  v.  Com- 
mon Council,  65  Barb.  9.  If  improper  parties  are  joined  or  errors 
assigned  not  warranted  by  the  record,  such  part  of  the  proceed- 
ings as  are  illegal  may  be  quashed  or  corrected,  and  the  rest 
affirmed  if  they  are  independent  of  each  other.  People  v.  Super- 
visors, 57  Barb.  377.  A  motion  to  quash  can,  as  a  rule,  be  made 
only  after  return.  People  v.  Cooper,  57  How.  463  ;  Clark  v.  Law- 
rence, I  Cow.  48.  But  where  a  notice  of  motion  was  to  quash 
and  supersede,  it  was  held  the  writ  might  be  superseded  before 
return.  Saratoga  &  Wash.  R.  R.  Co.  v.  iMcCoy,  5  How.  378  ; 
Ferguson  w.  Jones,  12  Wend.  241.  A  decision  quashing  a  certi- 
orari for  errors  appearing  upon  the  face  of  the  writ  and  not  upon 
the  merits  cannot  be  reviewed  by  writ  of  error.  People  v.  Mayor ^ 
I  How.  90.  Where  the  writ  appeared  to  have  been  granted  at 
Special  Term,  the  contrary  will  not  be  allowed  to  be  shown  by 
affidavit  on  a  motion  to  quash.     People  v.  Supervisors  of  Ulster, 

19  Week.  Dig.  208.  A  motion  may  be  made  to  supersede  the 
writ  if  it  was  improperly  issued  ;  also,  if  not  properly  directed  or 
is  otherwise  bad  in  law,  it  will  be   superseded.     Devlin  v.  Piatt, 

20  How.  167  ;  Ballv.  Warren,  16  id.  379.  Or  where  the  writ  has 
been  granted  to  remove  or  review  a  proceeding  before  it  is 
terminated,  the  writ  will  be  superseded.  People  v.  Peabody,  5 
Abb.  194  ;  Comstock  v.  Porter,  5  Wend.  98.  But  the  writ  cannot 
be  quashed  till  after  return,  but  it  may  be  then  quashed  where 
it  was  prematurely  issued  or  allowed  by  an  officer  having  no 
jurisdiction  to  allow  it,  or  on  the  application  of  a  party  not  in 
interest,  or  where  improperly  allowed  for  any  reason.  People  v. 
Peabody,  26  Barb.  437;  Devlin  v.  Piatt,  20  How.  167;  Caledonian 
Co.  v.  Trustees,  7  Wend.  665  ;  Colden  v.  Botts,  12  id.  234  ;  People 
v.  Stryker,  24  Barb.  650;  People  v.  Supervisors,  15  Wend.  198; 
People  V.  Mayor,  2  Hill,  14 ;  Brown  v.  Wesson,  i  How.  141  ; 
People  V.  Overseers,  44  Barb.  467  ;  People  v.  Supervisors,  57  id. 
377  ;  People  v.  Delaney,  49  N.  Y.  655  ;  Starkweather  v.  Seeley,  45 
Barb.   165  ;  People  v.  Schell,  5   Lans.   352.     The  court  will  quash 


372  WRIT    OF    CERTIORARI. 

Art.  6.     Proceedings  Upon  the  Writ. 

the  writ  if  improperly  allowed,  even  though  a  hearing  has  been 
had  on  the  merits.  People  ex  rel.  v.  Stillwell,  19  N.  Y.  531  ; 
People  ex  rel.  v.  Mayor,  2  Hill,  9  ;  People  v.  Commissioners,  103 
N.  Y.  371.  Writ  will  be  quashed  where  issued  to  require  deter- 
mination of  assessors  after  roll  has  left  their  hands.  People  v. 
Assessors,  40  Hun,  228.  In  People  v.  Supervisors  of  Rensselaer, 
34  Hun,  266,  following  People  v.  Supervisors  of  Queens,  82  N.  Y. 
275,  it  was  held  where  a  board  of  supervisors  had  audited  a  claim 
and  signed  the  tax-roll,  and  then  adjourned  sine  die,  that  the 
board  could  not  be  required  to  make  return  to  a  writ  of  certi- 
orari ■A.s'io  their  proceedings,  and  that  the  writ  should  be  quashed, 
as  the  board  had  no  power  over  the  matter  after  the  roll  had 
b^en  signed  and  warrant  delivered. 

The  same  rule  was  held  in  People  v.  Common  Council,  38  Hun, 
7,  it  being  said  that  as  the  writ  had  gone  into  the  hands  of  a 
mere  ministerial  officer,  and  out  of  the  control  of  those  officers 
who  had  any  judicial  control  or  quasi-judicial  control  over  it,  and 
the  defect  was  not  cured  by  the  fact  that  a  return  was  made,  the 
remedy  was  by  an  action  for  damages,  and  the  writ  must  be 
quashed.  Where  a  board  of  supervisors  had  issued  its  warrant 
to  the  collector  before  the  issuing  of  the  writ,  Jield,  that  it  was 
too  late  and  the  writ  should  be  quashed.  People  v.  Supervisors, 
82  N.  Y.  275  ;  see  People  v.  Supervisors  of  Albany,  23  Week. 
Dig.  568;  People  v.  Tompkins,  40  Hun,  238.  An  order  quashing 
a  common-law  certiorari  is  not  appealable  to  the  Court  of 
Appeals.     People  v.  Commissioners,  3  State  Rep.  615. 

Order  of  General  Term  Quashing  Writ. 

At  a  General  Term  of  the  Supreme  Court  for  the  Third  Judicial  Depart- 
ment, held  at  the  City  Hall,  in  the  city  of  Albany,  N.  Y.,  on  the  4th 
day  of  December,  1894: 

Present: — Hon.  Stephen  L.  Mayham,  Presiding  Justice ;  Hon.  John 
R.  Putnam,  Hon.  D.  Cady  Herrick,  //. 


The  People  ex  rel.  The  Forest  Commission, 

agst. 

Frank  Campbell,  Comptroller. 


152  NY.  56. 


The  above  entitled  proceeding  coming  on  for  argument,  and  the  same 
having  been  argued  at  the  September  Term  of  this  court  on  the  writ  of 


WRIT    OF    CERTIORARI.  373 


Art.  6.     Proceedings  Upon  the  Writ. 


certiorari  issued  herein,  the  papers  on  which  the  same  was  granted,  and 
the  return  of  the  comptroller  thereto,  and  the  defendant  having  made 
and  filed  a  motion  to  quash  the  said  writ,  and  the  relator  having  read  and 
filed  in  opposition  thereto,  the  appointment  of  attorney  and  authoriza- 
tion of  proceeding  with  approval  of  comptroller  and  attorney-general, 
dated  January  26th,  1892  ;  defendant's  notice  of  appearance  herein 
dated  on  or  about  May  12th,  1892:  stipulation  as  to  settlement  of 
return  and  stipulation  as  to  argument,  May  Term,  1894  :  now,  after 
hearing  Mr.  Frank  E.  Smith,  of  counsel  for  defendant,  in  support  of 
said  motion,  and  Mr.  William  P.  Cantwell,  of  counsel  for  the  relator,  in 
opposition  thereto,  and  due  deliberation  had  thereon,  and  on  motion  of 
Weeds,  Smith  &  Conway,  attorneys  for  the  defendant,  it  is 

Ordered,  that  said  writ  of  certiorari  issued  herein,  be,  and  the  same 
is,  quashed  with  fifty  dollars  costs,  and  printing  disbursements  to  be 
taxed  by  the  clerk  of  Albany  County,  on  the  ground  that  the  relator,  the 
Forest  Commission,  has  no  power  or  authority  in  a  case  like  this  to 
obtain  or  prosecute  such  writ.  J  AS.  D.  WELCH, 

Clerk. 

While  §  2137,  Code  Civ.  Proc,  permits  a  party  interested  in  up- 
holding the  decision  under  review  to  be  brought  in  as  a  party 
defendant,  yet  where  such  party  has  not  been  brought  in,  he  has 
no  right  to  appeal  from  the  decision  of  the  court.  His  interests 
are  protected  by  the  appeal  of  the  other  respondents  ;  though  it 
seems  that  such  party  could  be  heard  upon  appeal  by  permission 
of  the  court.  People  ex  rel.  Burnhams  v.  Jones,  no  N.  Y.  5 11 .  The 
provisions  of  §  2 137  are  permissive,  and  it  seems  that  parties  must 
avail  themselves  thereof  in  order  to  be  heard.  People  ex  rel. 
Francis  v.  Mead,  17  St.  Rep.  665,  2  Supp.  117.  The  party  can 
only  be  brought  in  as  a  party  to  the  writ  of  certiorari  by  the 
court  before  which  the  writ  is  brought  to  a  hearing.  It  cannot 
be  done  upon  appeal.  When  proceedings  instituted  under 
the  Highway  Law  resulted  in  laying  out  the  highway,  the  peti- 
tioner in  such  proceedings  to  lay  out  the  highway  is  the  proper 
party  to  be  brought  in  on  the  review  of  such  proceeding  by  cer- 
tiorari. On  the  contrary  the  highway  commissioners  of  the  town 
are  not  the  proper  parties,  though  the  town  itself  may  be  made 
a  party,  and  such  highway  commissioner  may  be  the  proper 
officer  to  make  application  for  bringing  in  the  town.  People  ex 
rel.  D.  L.  &  W.  R.  Co.  v.  County  Court,  92  Hun,  14. 

A  writ  of  certiorari  must  be  addressed  to  the  board  of  assessors, 
or  to  all  the  members  of  the  board,  and  not  merely  to  those  who 
signed  the  roll.  Peo.  ex  rel.  Benedict  v.  Roe,  25  App.  Div.  107, 
49  Supp.  227,  83  St.  Rep.  227. 


374  WRIT    OF   CERTIORARI. 

Art.    ;.     Return  to  Writ  and  Proceedings  Thereon. 

ARTICLE  VII. 

Return  to  Writ  and  Proceedings  Thereon.    §§  2133, 
2134,  2135.  2136,  2139. 

§  2133.  Subsequent  proceedings  as  in  an  action. 

After  a  writ  of  certiorari  has  been  issued,  the  time  to  make  a  return  thereto  may  be 
enlarged,  or  any  other  order  may  be  made,  or  proceeding  taken,  in  the  cause,  in  rela- 
tion to  any  matter  not  provided  for  in  this  article,  as  a  similar  proceeding  may  be 
taken  in  an  action,  brought  in  the  same  court,  and  triable  in  the  county  where  the 
writ  is  returnable. 

§  2134.  Return;  when  and  how  made. 

The  clerk  with  whom  a  writ  of  certiorari  is  filed,  and  each  person,  upon  whom  a 
writ  of  certiorari  is  served  as  prescribed  in  §  2130  of  this  act,  must  make  and  annex  to 
the  writ,  or  to  the  copy  thereof  served  upon  him,  a  return,  with  a  transcript  annexed, 
and  certified  by  him,  of  the  record  or  proceedings,  and  a  statement  of  the  other  mat- 
ter, specified  in  and  required  by  the  writ.  The  return  must  be  filed  in  the  office  where 
the  writ  is  returnable,  according  to  the  command  thereof. 

2  R.  S.  599,  §§  45  and  46  (2  Edm.  621). 

§  2135.  Id.;  how  compelled;  fees  for  making. 

If  a  return  is  defective,  the  court  may  direct  a  further  return.  An  omission  to  make 
a  return,  as  required  by  a  writ  of  cettiorari,  or  by  an  order  for  a  further  return,  may 
be  punished,  as  a  contempt  of  the  court.  But  a  judge  or  a  clerk  shall  not  be  thus 
punished,  unless  tha  ralator,  before  the  time  when  the  return  is  required,  pays  him, 
for  his  return,  the  sum  of  two  dollars,  and,  in  addition,  ten  cents  for  each  folio  of  the 
copies  of  papers  required  to  be  returned. 

See  2  R.  S.  576,  §  83  (2  Edm.  596),  and  §  2005. 

§  2136.  Id.  ;  after  term  of  oflB.ce  expired. 

A  writ  of  certiorari  may  be  issued  to,  and  a  return  to  a  writ  of  certiorari  may  be 
made  by,  an  officer,  whose  term  of  ofhce  has  expired.  Such  an  officer  may  be  punished 
for  a  failure  to  ma'ce  a  return  to  the  writ,  as  required  thereby  ;  or  to  make  a  further 
return,  as  required  by  an  order  for  that  purpose. 

§  2139.  Id.  :  upon   afladavits. 

If  the  orficer  or  other  person,  whose  duty  it  is  to  make  a  return,  dies,  absconds,  re- 
moves from  the  SLate,  or  becomes  insane,  after  the  writ  is  issued,  and  before  making 
a  return,  or  after  making  an  insufficient  return  ;  and  it  appears  that  there  is  no  other 
officer  or  person,  from  whom  a  sufficient  return  can  be  procured  by  means  of  a  new 
certiorari  ;  the  court  may,  in  its  discretion,  permit  affidavits,  or  other  written  proofs, 
relating  to  the  matters  not  sufficiently  returned,  to  be  produced,  and  may  hear  the 
cause  accordingly.  The  court  may  also,  in  its  discretion,  permit  either  party  to  pro- 
duce affidavits,  or  other  written  proofs,  relating  to  any  alleged  error  of  fact,  or  any 
other  question  of  fact,  which  is  essential  to  the  jurisdiction  of  the  body  or  officer,  to 
make  the  determination  to  be  reviewed,  where  the  facts,  in  relation  thereto,  are  not 
sufficiently  stated  in  the  return,  and  the  court  is  satisfied  that  they  cannot  be  made  to 
appear,  by  means  of  an  order  for  a  further  return. 

While  ^  2133,  Code  Civil  Procedure,  would  seem    to  give  stat- 
utory authority  for  reviewing  certiorari  proceedings,  yet  certiorari. 


WRIT    OF    CERTIORARI.  375 

Art.   7.     Return  to  Writ  and  Proceedings  Tliereon. 

being  a  special  proceeding,  abates  upon  the  death  of  the  petitioner, 
and  therefore  proceedings  to  vacate  an  assessment  were  held 
not  to  be  reviewable  in  the  name  of  the  executor  after  the  death 
of  the  petitioner.  Matter  of  Barney,  53  Hun,  481,  6  Supp.  401. 
A  return  to  a  writ  of  certiorari  need  not  be  under  the  seal  of 
the  court,  body,  or  ofihcer  making  it.  Scott  v.  RusJiman,  i  Cow. 
212.  And  the  return  should  be  made  by  a  majority  of  the  board 
to  whom  the  writ  is  directed.  People  v.  Cholwell,  6  Abb.  151. 
And  it  should  be  made  by  the  officer  to  whom  it  is  addressed, 
even  though  his  term  of  office  has  expired.  People  v.  Peabody,6 
Abb.  228;  Harris  v.  Whitney,  6  How.  175.  If  the  return  con- 
tains matters  inserted  by  way  of  explanation  or  otherwise,  be- 
sides what  is  ordered  to  be  returned,  such  matter  is  irrelevant 
and  is  not  to  be  regarded,  and  the  same  is  true  of  matters  as- 
serted merely  as  matters  of  belief  or  information,  and  not  as  a 
fact.  People  v.  Mayor,  2  Hill,  9  ;  Leroy  v.  Mayor,  20  Johns.  430  ; 
Lazvton  v.  Commissioners,  2  Cai.  179  ;  Stone  v.  Mayor  of  New 
York,  25  Wend.  157. 

An  officer  to  whom  a  writ  of  certiorari  is  directed  is  only  called 
upon  to  make  return  as  to  the  matter  specified  in  the  writ.  His 
return  is  conclusive  as  to  the  facts,  and  cannot  be  contradicted  ; 
it  must  be  taken  as  conclusive  and  acted  upon  as  if  true. 
People  V.  Dains,  38  Hun,  43.  The  following  cases  are  upon  the 
point  as  to  what  is  brought  up  by  the  writ,  and  discuss  the 
question  as  to  whether  the  evidence  must  be  returned.  They 
relate  largely  to  the  review  of  questions  of  jurisdiction  only  on 
common-law  certiorori  before  the  present  Code,  and  they  must 
now  be  examined  by  the  practitioner  in  connection  with  §  2140, 
which  enumerates  the  questions  which  may  be  now  reviewed  on 
certiorari,  and  renders  many  of  the  cases  heretofore  in  point 
partially  or  entirely  obsolete.  It  has  been  thought  better  to  cite 
the  cases  bearing  on  the  question  than  to  attempt  to  decide  as  to 
those  which  conflict  with  the  section,  and  leave  the  matter  open 
to  examination  on  the  authorities  cited,  and  the  provisions  of  the 
Code.  Even  among  the  cases  before  the  Code  much  conflict  had 
arisen,  as  will  appear  by  the  following  citations  :  RatJibun  v. 
Sawyer,  15  Wend.  451  ;  People  ex  rel.  v.  Goodzvin,  i  Seld.  568  ; 
People  V.  Board  of  Police,  16  Abb.  337;  People  v.  Mayor,  2  Hill, 
9;  People  V.  Van  Alstync,  32  Barb.  132;  Stone  v.  Mayor,  25 
Wend.  168;  People  V.  Overseers,  15  Barb.  287;  Starr  w.  Trust ees^ 


376  WRIT   OF   CERTIORARI. 


Art.   7.     Return  to  Writ  and  Proceedings  Thereon. 


6  Wend.  564  ;  Ex  parte  Mayor  of  Albany,  23  id.  280;  Niblo  v. 
Post's  Administrators,  25  id.  280;  Benjamin  v.  Benjamin,  i  Seld. 
383  ;  Moreivood  v.  Hollister,  2  id.  309  ;  People  v.  Goodivin,  5  N.  Y. 
568;  People  V.  Knoiules,  47  id.  415.  Affidavits  and  other  papers 
not  a  part  of  the  proceedings  are  not  properly  before  the  court, 
only  the  record  can  be  proceeded  on.  Matter  of  Eightieth  Street, 
16  Abb.  169;  People  v.  Bnrton,  65  N.  Y.  452.  It  was,  however, 
settled  before  the  Code  that  the  return  should  contain  so  much 
of  the  evidence  as  was  necessary  to  present  the  question  of  law 
on  which  relator  relied.  Bahhvin  v.  City  of  Buffalo,  35  N.  Y. 
375,  And  that,  where  the  jurisdiction  of  the  inferior  courts 
depends  on  a  fact  to  be  proved  before  itself,  the  proof  of  such 
jurisdictional  facts  should  be  returned  to  enable  the  higher  court 
to  determine  whether  the  fact  was  established.  People  v. 
Knowles,  47  N.  Y.  415.  And  the  evidence  necessary  to  show  a 
fact  essential  to  jurisdiction  would  not  be  assumed.  People  v. 
Soper,  7  N.  Y.  428.  The  record  itself  is  sent  up.  It  being  called 
a  copy  in  the  return  does  not  affect  it.  Wolfe  v.  Horton,  3  Cai. 
86.  Certiorari  brings  up  the  record  and  the  proceedings  to  and  in- 
cluding, but  not  subsequent  to,  judgment.  Gill  v.  People,  3  Hun, 
187,  affirmed,  60  N.  Y.  643.  The  writ  only  brings  up  such  pro- 
ceedings as  remain  before  the  body  to  whom  it  is  directed. 
People  V.  Snpervisors,  15  Wend.  198;  People  w.  Supervisors,  i  Hill, 
185.  A  certiorari  to  one  officer  does  not  bring  up  a  proceeding 
had  in  the  same  matter  before  a  different  officer.  Fitch  v.  Com- 
missioners, 22  Wend.  132  ;  Mott  v.  Commissioners,  2  Hill,  472. 
An  officer  to  whom  a  writ  of  certiorari \\-aiShQQVL  issued  is  only 
required  to  make  return  as  to  the  matters  specified  in  the  writ. 
The  hearing  must  be  on  the  writ  and  return.  The  papers  on 
which  the  writ  was  issued  can  be  considered  only  in  determining 
the  question  as  to  the  jurisdiction  of  the  court  to  issue  it,  and 
possibly  as  establishing  as  facts  such  matters  as  were  embraced 
in  the  writ  and  omitted  from  the  return.  People  v.  Darns,  38 
Hun,  43  ;  People  v.  French,  2^  id.  iii.  The  court  cannot  con- 
sider affidavits  tending  to  show  that  the  return  is  false,  nor  refer 
it  to  a  referee  to  ascertain  the  truth.  Remedy  is  only  by  an 
action  for  a  false  return.  People  v.  Mayor  of  Syracuse,  6  Hun, 
652  ;  People  V.  Ryken,  id.  625.  The  return  to  a  writ  of  certiorari 
must  be  taken  as  conclusive  and  acted  upon  as  true  ;  if  false  in 
fact  the  remedy  is  by  an  action  for  a  false  return.     Poeple  v.  Fire 


WRIT    OF   CERTIORARI.  377 


Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 

Commissioners,  "Ji  N.  Y.  437.  This  rule  is  modified  by  a  statute 
in  case  of  certiorarito  review  assessments.     Chap.  269,  Laws  1880. 

When  the  Court  of  Appeals  has  made  an  order  for  the  re- 
assessment of  the  property  of  a  corporation,  the  Supreme 
Court  may  require  the  commissioners  of  taxes  to  return  their 
proceedings,  although  the  tax-books  have  been  delivered  to 
the  board  of  aldermen  for  fifteen  days.  People  ex  rel.  Man- 
hattan R.  Co.  v.  Barker,  17  Misc.  497,  41  Supp.  236.  If 
the  return  to  the  writ  does  not  deny  the  statements  of  the 
relators,  those  statements  must  be  regarded  as  true.  People  ex 
rel.  C.  T.  &  E.  S.  Co.  v.  Barker,  7  App.  Div.  27,  39  Supp.  'j']^. 
The  return  of  a  comptroller  should  state  the  facts  upon  which 
he  valued  the  stock  of  a  corporation  at  par  value.  People  ex  rel. 
S.  I.  R.  T.  R.  R.  Co.  V.  Roberts,  4  App.  Div.  334,  74  St.  Rep.  107, 
38  Supp.  724  ;  and  where  tax  commissioners  have  rejected  the 
sworn  statements  of  a  corporation,  their  return  should  state  the 
information  on  which  they  acted  in  doing  so.  People  ex  rel.  I.  R. 
&  G.  P.  Co.  V.  Barker,  16  Misc.  252,  39  Supp.  88  ;  and  likewise 
the  return  of  police  commissioners  should  state  the  evidence 
specifically  which  they  considered  in  determining  the  guilt  of  an 
of^cer  whom  they  had  discharged.  People  ex  rel.  Siinerinyer  v. 
Roosevelt,  2  App.  Div.  498,  74  St.  Rep.  430,  37  Supp.  1083.  Al- 
though the  return  does  not  state  that  the  witnesses  were  sworn, 
where  it  does  state  that  the  charges  against  the  policeman  were 
duly  tried,  heard,  and  examined  in  the  manner  required  by  law, 
and  by  the  rules  of  the  department,  the  swearing  of  witnesses 
will  be  presumed.  People  ex  rel.  Killilca  v.  Roosevelt,  7  App,  Div. 
308,  40  Supp,  1 17.  The  return  of  a  board  of  assessors  cannot  be 
required  to  give  a  bill  of  particulars  of  the  items  composing  their 
award  of  damages  sustained  by  property  owners  by  a  change  of 
grade  under  Laws  1872,  chap.  729,  nor  are  they  required  to  state 
the  method  by  which  they  have  arrived  at  their  conclusion. 
People  ex  rel.  Heiser  v.  Gillon,  51  St.  Rep.  825,  22  Supp.  238. 

It  has  been  held  that  §  2134  providing  when  and  how  the  re- 
turns to  the  Avrit  of  certiorari  is  to  be  made  does  not  require  that 
such  return  shall  be  verified.  People  ex  rel.  Updyke  v.  Gillon,  18 
Civ.  Pro.  Ill,  9  Supp.  244.  The  return  should,  in  addition  to 
the  transcript  of  the  record  or  proceedings,  state  the  whole  truth 
in  respect  to  the  other  matters  specified  in  and  required  by  the 
writ,  and  in  the  absence  of  any  motion  to  correct   or  supply  its 


378  WRIT    OF    CERTIORARI. 


Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 


defects,  under  §  2135,  Code  Civil  Procedure,  the  presumption  is 
conclusive  tliat  it  does  so.  People  exrel.  Gage  v.  Lohnas,  54  Hun, 
608,  28  St.  Rep.  248,  8  Supp.  106.  The  office  of  the  writ  is  to 
compel  the  body  or  officer  whose  proceedings  are  under  review 
to  make  a  return  of  the  proceedings  and  a  statement  of  other 
matters  specified  in,  and  required  by,  the  writ.  Bcardslce  v. 
Dolge,  62  St.  Rep.  190.  The  general  statutory  writ  brings  up 
both  record  and  proceedings  for  examination,  not  only  as  to  juris- 
diction and  method  of  procedure,  but  also  as  to  whether  there 
was  a  violation  of  any  rule  of  law,  or  any  competent  proof  of  all 
essential  facts,  or  a  preponderance  of  proof  against  the  existence 
of  any  of  those  facts.  People  ex  rel.  Manhattan  R.  Co.  v.  Barker, 
152  N.  Y.  430.  The  statutory  writ  to  review  assessment  (Laws 
1880,  ch.  296)  differs  from  the  common-law  writ,  in  that  it  permits 
a  redetermination  of  all  questions  of  fact  upon  evidence  taken  in 
part  at  least  by  the  Special  Term,  or  under  its  direction.  People 
ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  431. 

The  opinion  of  counsel  on  questions  submitted  to  them  by  a 
board  of  assessors  in  regard  to  such  assessment  should  not  form 
part  of  the  return  to  the  writ.  People  ex  rel.  v.  Gillon,  56  Hun, 
641,  9  Supp.  690,  942.  Where  a  relator,  holding  a  public  office,  is 
entitled  to  be  informed  of  the  cause  of  his  removal  before  being 
removed,  a  communication  to  him  by  the  board  removing  him, 
calling  his  attention  to  the  charges,  should  be  added  to  the  re- 
turn by  order,  if  the  same  be  omitted.  People  ex  rel.  v.  Myers, 
55  Hun,  608,  8  Supp.  555. 

Thouo-h  the  return  to  the  common-law  writ  of  certiorari  must 
be  taken  to  be  true,  it  should  be  noted  that  in  the  certiorari  to 
review  assessments  under  the  tax  law,  testimony  may  be  taken 
when  it  appears  necessary,  and  thus  the  return  is  not  conclusive. 
People  ex  rel.  v.  Carter,  52  Hun,  458,  5  Supp.  507,  affirmed,  117 
N.  Y.  625.  The  return  to  a  writ  of  certiorari  may  be  amended  as 
to  parties  as  well  as  to  allegations  of  the  petition.  People  ex  rel. 
Benedict  v.  Roe,  25  App.  Div.  107,  49  Supp.  227,  83  St.  Rep.  227. 


WRIT    OF    CERTIORARI.  5/9 

Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 

Form  of  Return. 

SUPREME  COURT. 


The  People  of  the  State  of  New  York  ex  rel. 
Louis  Bevier  Supervisor  of  the  town  of 
Marbletown, 

agst. 

The  Board  of  Supervisors  of  Ulster  County. 


To  the  Supreme  Cow  t  of  the  State  of  New  York  : 

The  return  of  the  board  of  supervisors  of  the  county  of  Ulster,  in 
obedience  to  the  writ  of  certiorari  hereto  annexed  :  The  board  of  super- 
visors certifies  and  returns,  that  on  the  28th  day  of  November,  1885, 
the  supervisor  of  the  town  of  Marbletown  appealed  from  the  equalization 
made  by  the  board  of  supervisors  of  the  county  of  Ulster  at  their  annual 
session  in  said  year.  That  thereupon  a  committee  was  appointed  by 
said  board  to  take  charge  of  said  appeal,  and  such  committee  proceeded 
to  retain  counsel  and  made  preparations  to  defend  said  appeal.  That 
they  caused  searches  to  be  made  in  the  the  Ulster  County  clerk's  office 
for  all  sales  made  within  five  years  last  past,  and  proceeded  to  identify 
the  several  properties  and  prepare  sales  lists  at  an  expense  of  about 
$1,000,  and  denies  that  such  expense  exceeded  $2,000.  That  three 
appraisers  were  selected  to  value  the  property  in  each  town  and  make  a 
full  and  complete  list  thereof,  as  also  in  the  town  of  Marbletown  and  in 
the  city  of  Kington.  That  on  the  trial  one  thousand  four  hundred  and 
forty-seven  pages  of  evidence  were  taken,  covering  the  testimony  of  two 
hundred  and  seventy-five  witnesses,  and  statements  offered  in  evidence 
covering  every  piece  of  real  estate  in  the  county  of  Ulster.  That  the 
brief,  on  submitting  the  case,  contained  seventy-two  printed  pages,  in- 
cluding nine  tables.  That  the  said  appeal  was  dismissed.  That  the 
board  of  supervisors  proceeded  according  to  the  statute  to  audit  and 
allow  said  expenses,  and  audited  them  at  the  sum  of  $21,447.  That  said 
audit  was  honestly  and  fairly  made,  and  hereto  are  annexed  abstracts  of 
the  proceedings  of  said  board  on  said  audit  and  of  the  bill  so  audited. 
We  do  further  certify  and  return  that  in  the  preparation  of  the  matter 
of  the  appeals  before  the  State  assessors,  the  trial  and  the  final  submis- 
sion in  the  proper  performance  of  its  duty  under  the  statute,  the  board 
of  supervisors  of  Ulster  County  properly  and  necessarily  incurred  the 
costs  and  expenses  allowed  to  the  parties  as  aforesaid. 

All  of  which  we  hereby  certify  and  return  as  commanded  by  said  writ 
and  directed  by  statute. 

In  witness  whereof,  the  undersigned  chairman  and  clerk  of  the 

[l.  s.]  board  of  supervisors  of  Ulster  County  have  hereunto  set  their 
hands  and  the  seal  of  the  said  county  this  2d  day  of  February, 
1886.  C.  N.  DeWITT, 

JOHN  E.  KRAFT,   Clerk.  Chairman. 

(Add  verification^ 


38o  WRIT   OF   CERTIORARI, 

Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 

Return  to  Writ. 

NEW  YORK  SUPREME  COURT— Kings  County. 


People  ex  rel.  Philip  E.  Miller, 

agst. 

Frederick  W.  Wurster  as  Commissioner,  etc. 


149  N.  Y.  549. 


The  return  of  Frederick  W.  Wurster,  Commissioner  of  the  Fire 
Department  of  the  city  of  Brooklyn,  to  the  writ  of  certiorari  hereunto 
annexed : 

By  virtue  of  and  in  obedience  to  the  writ  of  certiorari  hereto 
annexed,  and  to  me  directed,  I  hereby  certify  and  return  to  the  Supreme 
Court  that  I  have  annexed  hereto  and  filed  herewith  all  the  proceedings 
and  other  matters  specified  and  required  by  said  writ. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this 
day  of  February,  1895. 

FREDERICK  W  WURSTER, 

Commissioner. 

(Add  copies  of  charges  and  specifications  preferred  against  petitioner  by 
the  foreman  or  other  officers  of  the  fire  department  showing  cause  for 
removal^ 

Return  to  Petition.     (126   N.  Y.  363.) 

To  the  Supreme  Court  of  the  State  of  New  York  : 

The  return  of  Egbert  Hildreth,  Erastus  F.  Post,  and  William  R.  Per- 
ring,  as  commissioners  of  highways  of  the  town  of  Southampton,  in  the 
county  of  Suffolk,  to  the  writ  of  certiorari  hereto  annexed : 

Obedient  to  the  command  of  said  writ  we  do  hereby  certify  and 
return  as  follows,  viz.:  On  or  about  March  14th,  1887,  the  said  (insert 
commissioners'  names),  as  commissioners  of  highways  aforesaid,  received 
an  application  from  John  L.  Cook  and  William  H.  Cook,  the  relators 
herein,  and  others  to  lay  out  a  highway  as  described  in  the  affidavit  or 
petition  for  the  writ  of  certiorari,  of  which  the  following  is  a  copy: 
(insert  copy  of  petition  for  new  highway). 

On  or  about  the  i6th  day  of  March,  1887,  there  was  served  on  William 
R.  Perring,  one  of  the  said  commissioners,  on  James  H.  Foster,  justice 
of  the  peace,  of  said  town,  and  on  Henry  A.  Fordham,  the  clerk  of  said 
town,  a  notice  of  which  the  following  is  a  copy  :  (insert  notice  for  draw- 
ing of  a  jury). 

On  the  26th  day  of  March,  1887,  at  10  o'clock  in  the  forenoon  on 
that  day  Henry  A.  Fordham,  as  town  clerk  aforesaid,  drew  a  jury  as 
specified  in  said  notice  in  the  presence  of  said  William  R.  Perring  and 
of  William  H.Cook,  one  of  the  applicants,  and  the  said  town  clerk 
thereupon  made  his  certificate  of  the  drawing  of  such  jury,  and  the 
same  was  on  the  same  day  delivered  to  the  said  James  H.  Foster,  as 
justice  of  the  peace. 


WRIT   OF   CERTIORARI.  ^8 1 


Art.   7.     Return  to  Writ  and  Proceedings  Thereon. 


That  the  said  James  H.  Foster  thereupon,  on  the  28th  day  of  March, 
1887,  as  justice  of  the  peace,  issued  a  summons  for  said  jury  to  meet 
near  the  water  mills  deport  in  said  town  on  the  nth  day  of  April,  1887, 
at  12  o'clock  noon,  to  examine  and  to  certify  as  to  the  necessity  of  said 
proposed  highway,  of  which  summons  the  following  is  a  copy  :  (insert 
copy). 

Said  summons  was  delivered  to  and  served  by  Oliver  Fanning,  the 
constable  of  said  town,  on  the  30th  and  31st  days  of  March,  1887, 
more  than  six  days  before  the  time  appointed  for  the  meeting  of  the 
said  jury.  At  the  appointed  time  and  place  the  12  jurors  drawn  and 
summoned  appeared  and  were  duly  sworn  to  well  and  truly  certify  as  to 
the  necessity  of  the  proposed  highway. 

After  first  viewing  the  route  of  the  proposed  highway  and  hearing 
statements  for  and  against  said  application,  the  jurors  present  made  and 
signed  and  delivered  to  said  commissioners  of  highways  a  certificate,  of 
which  the  following  is  a  copy  :  (insert  copy  as  to  necessity  of  highway 
by  jurors). 

That  on  April  30th,  1887,  the  said  certificate  of  said  jurors  was  filed 
by  said  commissioners  of  highways  in  the  office  of  the  town  clerk  of  the 
town  of  Southampton.  That  more  than  3  days  before  April  21st,  1887, 
a  notice  of  which  the  following  is  a  copy,  was  personally  served  upon 
the  occupants  of  the  land  through  which  the  proposed  highway  was  to 
run,  viz.  :  (insert  copy). 

(Here  insert  copy  of  notice  of  meeting  of  the  commissioners  to  decide 
upon  the  application  made  for  the  road.) 

That  in  accordance  with  the  said  notice  the  said  commissioners  of 
highways  met  and  laid  out  said  proposed  highway,  and  made  and  signed 
an  order  of  which  the  following  is  a  copy  and  said  order  was  recorded 
and  filed  in  the  office  of  the  clerk  of  the  town  of  Southampton  and  duly 
posted  by  said  town  clerk  on  the  30th  day  of  April,  1887  :  (insert  notice 
of  decision).  (Signed  and  verified.) 

Where  a  board  of  supervisors  refuses  to  make  a  return  to  cer- 
tiorari until  the  fees  are  paid,  under  §  2135,  it  should  state  the 
amount  of  the  fees  demanded.  People  ex  rel.  v.  Board  of  Super- 
visors of  Fulton  County^  65  Hun,  622,  20  Supp.  280.  In  connection 
with  §  2135  of  the  Code,  §  2005  should  be  considered,  and  it  has 
been  held  under  this  latter  section,  that  the  return  will  not  be 
required  unless  where  fees  are  paid,  where  it  is  necessary  to 
return  copies  of  papers  on  file  in  the  town  clerk's  of^ce.  People 
ex  rcl.  V.  Ouderkirk,  76  Hun,  119,  27  Supp.  821. 

The  return  to  the  writ  of  certiorari  is  conclusive  as  to  the  facts 
and  cannot  be  contradicted.  If  it  is  defective  the  court  may 
direct  a  further  return  ;  if  it  is  false  the  relator's  remedy  is  by 
action.  People  ex  rel.  Cronk  v.  Weld,  6  St.  Rep.  175.  If  the 
relator  deems  the  return  defective,  as  where  it  fails  to  embody 


382  WRIT   OF   CERTIORARI. 


Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 


all  the  proceedings,  he  should  compel  a  further  return  by  a 
proper  application  to  the  court  under  §  2135.  It  seems  that  his 
failure  so  to  do  is  strictly  indicative  of  the  substantial  complete- 
ness of  the  return  actually  made.  People  ex  rel.  Qiiinn  v.  Robb, 
31  St.  Rep.  642,  9  Supp.  832. 

If  a  return  to  the  writ  of  certiorari  is  false  in  fact,  the  remedy 
is  by  an  action  for  a  false  return,  and  not  by  motion  for  a  fur- 
ther return.  People  ex  rel.  Updyke  v.  Gilon,  18  Civ.  Pro.  in,  9 
Supp.  244.  If  the  writ  is  defective,  the  court  may  direct  further 
return,  and  in  the  absence  of  any  motion  to  correct  or  supply 
defects,  the  presumption  that  the  return  states  the  whole  truth 
in  respect  to  the  matters  specified  in  and  required  by  the  writ  is 
conclusive.  People  ex  rel.  Gage  v.  Lohnas,  28  St.  Rep.  248,  54 
Hun,  608,  8  Supp.  106.  Where  the  writ  requires  a  full  account 
of  the  proceedings  to  be  reviewed,  the  court  has  no  authority  to 
strike  out  any  part  of  the  return  because  it  may  be  irrelevant. 
Where  omissions  exist  in  the  return,  the  court  has  power  to 
order  the  making  of  a  further  return.  This  power  to  order 
a  further  return  existed  at  common  law.  People  ex  rel. 
Higgins  V.  Grant,  s^  Hun,  160,  33  St.  Rep.  810,  19  Civ.  Pro. 
318,   II   Supp.  505. 

Section  3280  of  the  Code  Civil  Procedure,  which  provides 
that  public  ofificers  upon  whom  a  duty  is  imposed  by  law  must 
execute  the  same  without  fee  or  reward,  does  not  apply  to  com- 
pel a  board  of  supervisors  to  make  a  return  to  the  writ  of  certi- 
orari wxthont  the  payment  of  the  fees  provided  in  §  2135  of  the 
Code.  People  ex  rel.  Sutliff  v.  Supervisors,  64  Hun,  376,  46  St. 
Rep.  471,  19  Supp.  773.  In  proceedings  by  certiorari  against 
the  board  of  supervisors,  §  3280  of  the  Code  Civil  Procedure 
does  not  apply,  but  the  fee  for  making  such  return  is  to  be  at 
the  rate  prescribed  by  §  2135,  Code  Civil  Procedure.  People  ex 
rel.  Sutliff  v.  Supervisors,  A^J  St.  Rep.  928,  20  Supp.  280.  If  the 
writ  to  certiorari  contains  irrelevant  and  improper  statements, 
the  court  will  disregard  them  in  making  its  decision,  but  no  part 
of  such  return  can  be  stricken  out.  If  all  the  information  which 
can  be  furnished  to  the  court  is  already  returned,  no  further  re- 
turn will  be  ordered.  People  ex  rel.  Lovellv.  Melville,  58  St. 
Rep.  557,  7  Misc.  217. 

It  seems  that  if  a  return  to  a  writ  is  evasive  or  not  sufificiently 
full,  the  relator   should   compel  a  further    return    under  §  2135 


WRIT   OF   CERTIORARI.  383 

Art.   7.     Return  to  Writ  and  Proceedings  Thereon. 

of  the  Code  ;  but  if  instead  of  asking  for  a  further  return,  the 
relator  is  content  to  stand  upon  the  return  as  made,  the  court  is 
bound  to  take  the  same  as  absolutely  true.  If  the  return  is  false, 
the  relator's  remedy  is  by  action  for  a  false  return.  People  ex 
rel.  P.  P.  Co.  V.  Martin,  142  N.  Y.  235,  58  St.  Rep.  763,  affirming- 
55  St.  Rep.  442.  The  return  is  conclusive  as  to  the  facts  stated, 
and  the  court  cannot  look  beyond  it  to  the  petition  for  facts, 
unless  the  return  admit  such  facts  in  the  petition.  If  the  return 
is  false  or  evasive,  the  relator  had  his  remedy  under  this  section 
by  compelling  a  further  return.  People  ex  rel.  Miller  v.  Wurster, 
149  N.  Y.  554;  People  ex  rel.  McMillen  v.  Vanderpoel,  35  App. 
Div.  73. 

It  should  be  noted  that  certiorari  to  review  assessments  under 
Laws  1880,  ch.  269,  differs  from  the  common-law  writ,  and  that  the 
return  therein  is  not  conclusive.  The  petition  is  regarded  as  the 
complaint,  the  return  as  the  answer,  and  in  deciding  the  issues 
joined  thereby  the  court  may  call  witnesses  to  its  aid,  and  their 
testimony  becomes  part  of  the  proceedings  upon  which  the  de- 
termination is  to  be  made.  People  ex  rel.  Manhattan  R.  Co.  v. 
Barker,  152  N.  Y.  431. 

A  further  return  will  be  directed  unless  the  board,  whose  de- 
termination is  under  review,  certifies  that  all  its  acts  are  con- 
tained in  the  return  ;  so  held  on  the  review  of  determination  of 
police  commissioners  removing  an  officer.  People  ex  rel.  v.  Mac- 
Lean,  61  Super.  Ct.  458,  19  Supp.  548.  It  is  a  sufficient  return 
by  a  comptroller  of  the  evidence  on  which  he  acted  in  cancelling 
a  tax  sale,  where  he  returned  the  year,  volume,  and  page  of  the 
State  report  on  which  he  relied,  without  setting  out  the  same  in 
hacc  verba.  People  ex  rel.  v.  Wemple,  6^  Hun,  495,  22  Supp.  497, 
reversed  on  other  grounds,  139  N.  Y.  249.  A  return  by  com- 
missioners appointed  to  determine  the  necessity  of  the  highway, 
which  omits  no  part  of  the  record,  and  includes  all  the  evidence 
on  which  the  committee  acted,  and  states  that  it  reached  its  con- 
clusion from  the  evidence  and  from  personal  inspection,  is  not 
defective.  People  ex  rel.  v.  Mellville,  7  Misc.  214,  27  Supp.  iioi. 
A  return  to  certiorari  signed  by  the  chairman  and  clerk  of  the 
board  of  supervisors  is  good,  if  it  was  authorized  by  the  majority 
of  the  board,  although  not  signed  by  such  majority.  People  ex 
rel.  v.  Webb,  66  Hun,  632,  21  Supp.  298.  A  return  to  certiorari 
reviewing  the  decision  of  the  examining  board  of  plumbers  in 


384  WRIT   OF   CERTIORARI. 

Art.  7.     Return  to  Writ  and  Proceedings  Thereon. 


refusing  an  application  for  a  license  is  insufificient,  though  setting 
out  the  questions  and  answers  on  the  hearing,  if  it  does  not 
allege  that  any  of  the  questions  were  incorrectly  answered,  or 
show  that  such  answers  were  incorrect  or  defective.  People  ex 
rel.  V.  Scott,  86  Hun,  174,  33  Supp.  229.  Where,  in  reviewing 
the  action  of  an  examining  board  of  plumbers,  in  refusing  a 
license,  the  petition  states  that  a  member  of  the  board  told  the 
petitioner  that  he  would  oppose  the  granting  of  the  license 
Ijecause  the  relator  would  compete  with  him  in  business,  a  return 
which  does  not  specifically  deny  such  allegation  is  defective. 
People  ex  rel.  v.  Scott,  86  Hun,  174,  33  Supp.  229.  As  §  2135  of 
the  Code  Civ.  Proc.  provides  that  the  court  may  direct  a  further 
return,  if  the  first  return  is  defective,  the  first  return  will  not 
be  considered  defective  in  the  absence  of  a  motion  to  cor- 
rect the  same.  People  ex  rel.  Gage  v.  Lolmas,  54  Hun,  604,  8 
Supp.  104. 

On  certiorari  to  review  assessments,  where  the  return  denies 
that  the  assessments  were  excessive,  or  that  there  was  any  fail- 
ure to  properly  value  and  assess  other  property,  such  return  is 
conclusive,  if  not  overcome  by  proof.  People  ex  rel.  v.  Commis- 
sioners of  Taxes,  51  Hun,  641,  4  Supp.  41. 

The  return  of  a  board  of  supervisors  on  certiorari  to  review 
their  decision  rejecting  a  sheriff's  account  must  be  taken  to  be 
true.  People  ex  rel.  v.  Board  of  Supervisors  of  Clinton,  64  Hun, 
636,  19  Supp.  642.  See  same  case  as  to  allegations  in  the  return 
amounting  to  denial  under  the  circumstances. 

There  is  no  provision  of  law  or  any  practice  permitting  matter 
to  be  stricken  from  a  return  to  certiorari.  People  ex  rel.  Higgins 
V.  Grant,  58  Hun,  158,  ii  Supp.  505,  19  Civ.  Proc.  318,  33  St. 
Rep.  810;  and  where  a  return  contains  matter  not  material,  it 
need  not  be  sent  back  for  correction  because  the  court  on  the 
hearing  may  consider  such  immaterial  matter  as  surplusage. 
People  ex  rel.  v.  Webb,  66  Hun,  632,  21  Supp.  298  ;  People  ex  rel. 
V.  Melville,  7  Misc.  214,  27  Supp.  iioi. 

An  order  refusing  to  send  back  a  return  should  be  affirmed 
when  it  appears  from  the  papers  that  there  is  no  merit  in  the 
application.  People  ex  rel.  v.  Webb,  66  Hun,  632,  21  Supp.  298. 
Where  the  return  is  not  apparently  defective,  the  remedy  is  by 
action  for  a  false  return,  and  not  by  motion  to  correct  the  same. 
People  ex  rel.  v.  Gilon,  9  Supp.  243,  18  Civ.   Proc.    109.     In  such 


WRIT   OF   CERTIORARI.  385 


Art.   7.     Return  to  Writ  and  Proceedings  Thereon. 

action  for  an  alleged  false  return  to  a  writ  of  certiorari  reviewing 
the  proceedings  of  highway  commissioners,  a  judgment  for  the 
plaintiff  will  be  reversed  where  it  appears  that  the  portion 
alleged  to  be  false  was  intended  as  a  statement  by  the  defendant 
of  his  holding  as  a  commissioner,  and  not  as  an  assertion  of  fact. 
Beardslec  v.  Dolge^6%    Hun,  623,  20  Supp.  161. 

While  the  return  to  the  writ  of  certiorari  may  be  required  to 
be  made  by  an  officer  whose  term  has  expired,  yet,  where  such 
return  contradicts  the  official  return  made  by  the  board  itself,  it 
seems  that  the  return  of  the  board  will  be  given  the  controlling 
weight  on  the  grounds  that  the  record  cannot  be  contradicted. 
See  full  discussion  on  the  weight  to  be  given  to  contradictory  re- 
turns in  People  ex  rel.  Masterson  v.  Marin,  17  App.  Div.  562. 
While  the  writ  may  issue  to  an  officer  whose  term  has  expired, 
yet,  where  the  office  is  a  continuing  office,  such  as  the  comp- 
troller of  the  State,  and  the  record  to  be  reviewed  is  in  the  pos- 
session of  the  successor  to  such  office,  the  present  incumbent  of  the 
office  is  the  proper  party,  notwithstanding  the  transaction  to  be 
reviewed  was  the  act  of  the  previous  incumbent.  Such  previous 
incumbent  need  not  be  made  a  party.  §  2136,  Code  Civ  Proc. 
notwithstanding.  In  the  Matter  of  Tiffany  &  Co.,  62  St.  Rep. 
395,  30  Supp.  495. 

It  seems  that  whatever  power  the  court  has  to  consider 
additional  affidavits  on  the  hearing  of  certiorari  by  virtue  of  § 
2139  of  the  Code,  yet,  after  argument  and  after  several  months 
have  elapsed  since  the  filing  of  the  return,  the  court  will  not  per- 
mit the  introduction  of  affidavits.  People  ex  rel.  S.  C.  O.  Co.  v. 
Wemple,  61  Hun,  85,    15  Supp.  447. 

Note  the  distinction  between  the  general  statutory  writ  of 
certiorari  regulated  by  the  Code  and  the  certiorari  to  review 
assessment  which  is  created  by  special  statute,  and  in  which  a  re- 
determination of  all  questions  of  fact  upon  evidence  taken  by 
the  Special  Term  or  under  its  direction  may  be  had.  See  People 
ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N.  Y.  430. 

It  seems  that  additional  affidavits  will  not  be  considered  upon 
the  hearing  except  for  the  purposes  set  forth  in  §  2139,  that  is 
to  say,  for  the  purpose  of  showing  facts  essential  to  the  jurisdic- 
tion of  the  body  or  officer  to  make  the  determination  to  be  re- 
viewed ;  or  that  the  officer  whose  duty  to  make  a  return  has 
died,  absconded,  or  removed  from  the  State,  etc.  People  ex  rel. 
25 


386  WRIT   OF   CERTIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

Simons  v.  Murray,  14  Misc.  177,  69  St.  Rep.  815.  Compare  also 
People  ex  rel.  Kidd  v.  Commissioners  of  Excise,  25  Supp.  874; 
People  ex  rel.  Sprague  v.  Board  of  Excise,  91  Hun,  99 ;  People  ex 
rel.  McMillen  v.  Vanderpoel,  35  App.  Div.  73.  Section  2136  is 
in  accord  with  People  v.  Fire  Commissioners,  73  N.  Y.  437,  hold- 
ing that,  if  a  return  is  insufficient,  a  further  return  may  be  com- 
pelled. People  V.  Dains,  38  Hun,  43.  This  is  done  by  motion. 
This  was  held  in  Overseers  of  Poor  of  Brooklyn  v.  Overseers 
of  Southold,  2  Cow.  575.  If  a  corporation  refuses  to  make 
return,  a  writ  of  sequestration  may  issue  after  distringas. 
People  V.  City  of  Brooklyn,  5  How.  314.  Upon  return  to  a  writ 
of  certiorari,  if  the  return  is  false  in  fact  or  insufficient  in  form, 
the  remedy  is,  in  the  former  case,  by  action  for  false  return,  and 
in  the  latter  by  compelling  a  further  or  more  specific  return. 
People  V.  CajHpbell,  50  N.  Y.  Super.  82.  The  hearing  to  review 
the  refusal  of  an  excise  board  to  grant  a  license  must  be  heard 
upon  the  writ  and  the  return  ;  and  the  individual  affidavits  of 
the  members  of  such  board  will  not  be  considered  except  in 
the  case  of  their  absence,  insanity,  or  death.  People  ex  rel. 
Sprague  v.  Board  of  Excise,  91  Hun,  94,  71  St.  Rep.  697,  36 
Supp.  678  ;  nor  should  affidavits  which  are  merely  cumulative 
be  considered  upon  the  hearing.  People  ex  rel.  Shields  v. 
Hayden,  7  Misc.  292,  58  St.  Rep.  544,  27  Supp.  893. 

ARTICLE   VIII. 

Hearing  and  Questions  to  be  Determined. 
§§  2138,  2140. 

§  2138.     [Am'd,  1895.]     Hearing  upon  return. 

The  cause  must  be  heard  at  a  term  of  the  appelhtte  cHvision  of  the  Supreme  Court, 
held  within  the  judicial  department  embracing  the  county  where  the  writ  was  return- 
able. Either  party  may  notice  it  for  hearing  at  any  time  after  the  reture  is  complete. 
Except  as  prescribed  in  the  next  section,  it  must  be  heard  upon  the  writ  and  return, 
and  the  papers  upon  which  the  writ  was  granted. 

§  2140.  Questions  to  be  determined. 

The  questions  involving  the  merits  to  be  determined  by  the  court  upon  the  hearing 
are  the  following  only  : 

1.  Whether  the  body  or  officer  had  jurisdiction  of  the  subject-matter  of  the  deter- 
mination under  review. 

2.  Whether  the  authority  conferred  upon  the  body  or  officer  in  relation  to  that  sub- 
ject-matter has  been  pursued  in  the  mode  required  by  law,  in  order  to  authorize  it  or 
him  to  make  the  determination. 


WRIT   OF   CERTIORARI.  387 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

3.  Whether,  in  making  the  determination,  any  rule  of  law  affecting  the  rights  of  the 
parties  thereto  has  been  violated  to  the  prejudice  of  the  relator. 

4.  Whether  there  was  any  competent  proof  of  all  the  facts  necessary  to  be  proved 
in  order  to  authorize  the  making  of  the  determination. 

5.  If  there  was  such  proof,  whether  there  was,  upon  all  the  evidence,  such  a  pre- 
ponderance of  proof  against  the  existence  of  any  of  those  facts  that  the  verdict  of  a 
jury,  affirming  the  existence  thereof,  rendered  in  an  action  in  the  Supreme  Court, 
triable  by  a  jury,  would  be  set  aside  by  the  court  as  against  the  weight  of  evidence. 

Section  2138  requires  the  case  to  be  heard  not  only  upon  the 
return,  but  also  upon  the  papers  upon  which  the  writ  was 
granted.  It  is  not,  however,  the  design  of  this  extension  of  the  law 
to  allow  the  return  to  be  controverted  or  overthrown  in  its  state- 
ment by  anything  contained  in  the  papers  presented  for  the 
allowance  of  the  writ.  At  common  law  the  return  was  conclu- 
sive as  to  the  facts  contained  in  it,  and  it  seems  that  it  was  not 
the  purpose  of  the  legislature  by  the  provisions  of  §  2138  to  in- 
terfere with  the  existence  of  the  previous  rule.  The  intention 
was,  it  seems,  that  where  the  return  itself  might  be  silent,  that 
the  afifidavits  or  papers  upon  which  the  writ  was  granted  might 
be  resorted  to  for  the  purpose  of  including  facts  not  sent  out  in 
the  return.  People  ex  rel.  McCarthy  v.  French,  25  Hun,  112. 
See  this  case  for  a  discussion  to  the  scope  of  §  2138,  Code 
Civil  Procedure,  as  to  what  papers  shall  be  used  upon  a  hearing. 

Affidavits  upon  the  part  of  the  relator  not  used  on  the  applica- 
tion of  the  writ  and  first  presented  when  the  matter  is  heard 
thereto  are  no  part  of  the  return,  and  are  not  admissible  in  the 
case.  People  ex  rel.  Sprague  v.  Board  of  Excise,  91  Hun,  98. 
Though  §  2138  of  the  Code  Civ.  Proc.  provides  that  the  hearing 
upon  the  return  to  certiorari  "  must  be  heard  upon  the  writ  and 
return,  and  the  papers  upon  which  the  writ  was  granted,"  yet 
this  does  not  mean  anything  more  than  what  the  General  Term 
must  have  before  it  at  the  time  of  the  hearing  and  upon  which  it 
must  base  its  decision.  Where  the  return  to  a  writ  of  certiorari 
practically  admits  all  the  allegations  of  the  petition,  such  allega- 
tions may  be  considered  by  the  court.  Peo.  ex  rel.  White  v. 
Clinton,  28  App.  Div.  478,  51  Supp.  115,  85  St.  Rep.  115.  An 
objection  not  taken  before  the  assessors,  that  relator  was  assessed 
in  the  wrong  ward,  should  be  disregarded  by  the  Special  Term 
on  the  hearing  of  a  certiorari.  Peo.  ex  rel.  Citizens  Electric  Illumi- 
nating Co.  V.  Neff,  26  App.  Div.  542,  50  Supp.  680,  84  St.  Rep. 
680.     In  order  for  a  board  of  police  commissioners  to  discharge 


^88  WRIT    OF    CERTIORARI. 


Art.  8.     Hearing  and  Questions  to  be  Determined. 


a  member  of  the  police  force  it  must  find  him  guilty  of  the  charge, 
and  a  mere  resolution  dismissing  him  without  finding  him  guilty 
is  without  effect,  and  he  should  be  restored  to  his  position.  So 
held,  where  a  police  force  after  hearing  proofs  as  to  charges 
against  a  policeman  entertained  a  motion  to  dismiss  the  charges, 
but  never  decided  that  motion,  and  thereafter  without  finding 
the  accused  guilty  of  the  offence  passed  a  resolution  dismissing 
him  from  the  police  force.  People  ex  rel.  Reidy  v.  Grady,  26  App. 
Div.  593.  The  State  board  of  railroad  commissioners  may  grant 
an  application  by  a  railroad  company  for  leave  to  abandon  one  of 
three  stations  in  a  city  of  twenty-five  thousand  inhabitants,  not- 
withstanding the  fact  that  the  station  has  been  paid  for  by  the 
citizens  and  was  conveyed  to  the  railroad  company  under  an 
agreement  that  in  consideration  thereof  the  railroad  would  cause 
its  trains  to  stop  at  said  station  for  passengers,  and  where  the 
agreement  contained  nothing  to  indicate  how  long  it  should  con- 
tinue in  force.  It  seems  that  the  board  of  railroad  commissioners 
is  not  authorized  to  pass  upon  the  force  and  effect  of  contracts 
made  between  a  railroad  company  and  third  parties.  People  ex 
rel.  Loiighran  v.  Commissioners,  32  App.  Div.  160,  52  Supp.  901. 
Where  a  clerk  in  the  department  of  buildings  of  the  city  of 
New  York  was  removed  without  service  upon  him  of  a  notice  of 
the  cause  of  his  proposed  removal,  and  without  a  hearing  being 
given  him,  as  required  by  the  Consolidation  Act,  Laws  1882, 
chapter  410,  §  48,  such  a  removal  is  without  according  the  relator 
his  legal  rights,  and  he  should  be  reinstated.  People  ex  rel. 
McCabe  v.  Constable,  27  App.  Div.  76.  Also  held,  in  this  case, 
that  upon  the  facts  the  charge  upon  which  he  was  removed  was 
frivolous  and  baseless.  Id.  It  is  part  of  our  State  system  to 
commit  many  governmental  powers,  involving  judicial,  executive, 
and  ministerial  functions,  to  a  single  officer  or  a  board  or  com- 
mission, and  if  such  body,  in  the  exercise  of  its  functions,  renders 
its  decision  upon  a  misapprehension  of  the  law,  such  error 
should  be  corrected.  So  held,  in  relation  to  the  decision  of  the 
board  of  railroad  commissioners  in  reference  to  an  application  by 
a  street  surface  railroad  for  permission  to  change  its  motive 
power.  People  ex  rel.  Babylon  R.  R.  Co.  v.  Commissioners,  32  App. 
Div.  182.  Section  2138  does  not  mean  that  the  court  is  at 
liberty  to  look  beyond  the  return  and  to  consider  the  facts 
contained  in  the  accompanying  papers,  unless  the  return  to  the 


WRIT   OF   CERTIORARI.  389 


Art.  8.     Hearing  and  Questions  to  be  Determined. 


writ  made  by  the  respondent  should  be  an  admission  made  to 
those  facts  or  an  equivalent  to  an  admission.  People  ex  rcl. 
Miller  v.  Wurster,  149  N.  Y.  554,  25  Civ.  Pro.  370,  reversing  91 
Hun,  234,  distinguishing  People  ex  rel.  Peck  v.  Commissioners, 
106  N.  Y.  64.  Though  §  2138  of  the  Code  Civil  Procedure  pro- 
vides that  the  hearing  shall  be  had  upon  the  writ,  the  return, 
and  the  papers  upon  which  the  writ  was  granted,  yet,  where  the 
petition  for  the  writ  contains  a  great  mass  of  facts  which  are  not 
pertinent  to  the  review,  it  seems  that  all  the  court  will  consider 
are  the  facts  which  show  that  a  proper  case  existed  for  issuing 
the  writ.     People  ex  rcl.  Kidd  \\  Commissioners,  25  Supp.  874. 

The  statute  requires  that  the  hearing  upon  the  return  to  the 
writ  of  certiorari  must  be  at  a  term  of  the  appellate  division 
held  within  the  judicial  department  embracing  the  county  where 
the  writ  was  returnable  ;  not  so,  however,  as  to  the  writ  to  review 
assessments,  which  should  be  heard  at  Special  Term.  See  People 
ex  rel.  Ulster,  etc.,  R.  R.  Co.  v.  Smith,  24  Hun,  66. 

Section  2138  provides  that  except  as  prescribed  in  the  follow- 
ing section,  which  provides  that  the  court  may  in  its  discretion 
allow  the  modification  of  affidavits  or  other  written  proofs,  the 
return  must  be  heard  upon  the  writ  and  return  and  papers  upon 
which  the  writ  was  granted.  See  People  ex  rel.  Hopkins  v.  Com. 
of  Excise,  4  Misc.  330.  Except  as  otherwise  provided,  the  hear- 
ing must  be  upon  the  writ,  return,  and  the  papers  upon  which 
the  writ  was  granted,  and  it  seems  that  the  papers  will  be  pre- 
sumed to  contain  all  the  proceedings,  inasmuch  as  if  the  relator 
considers  the  return  defective  he  should  have  compelled  a  further 
return  by  the  proper  application  under  §  2135  of  the  Code  of 
Civil  Procedure.  People  ex  rel.  Qiiinn  v.  Robb,  31  St.  Rep.  641, 
9  Supp.  832. 

While  §  2139  permits  the  court  in  its  discretion  to  allow  the 
introduction  of  affidavits,  yet  where  several  months  have  elapsed 
since  the  return  the  General  Term  will  not  permit  the  introduc- 
tion of  affidavits  contradicting  the  statements  of  the  return  after 
the  argument  upon  the  hearing.  In  such  case  it  seems  the  hear- 
ing should  be  restricted  to  the  papers  specified  in  §  2138.  People 
ex  rel.  S.  C.  O.  Co.  v.  Wemple,  39  St.  Rep.  739,  15  Supp.  447. 
The  practice  prior  to  the  present  Code  required  that  the  hear- 
ing upon  the  return  to  certiorari  sh.ov\\di  be  solely  upon  the  return 
{Peo.  ex  rel.  Simms  v.  Fire  Com.,  73  N.  Y.  437),  but  §  2138  of  the 


390  WRIT   OF   CERTIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

present  Code  requires  that  the  hearing  be  had  upon  the  writ 
and  return  and  the  papers  upon  which  the  writ  was  granted. 
Under  this  section  where  the  return  meets  all  the  allegations 
of  the  writ  and  the  papers  upon  which  it  was  granted,  and 
traverses  them,  then  the  hearing  must  be  confined  to  the  facts 
stated  in  the  return,  but  where  the  return  admits  the  facts  of  the 
writ  or  the  papers  upon  which  it  was  granted,  or  is  silent  as  to  them, 
then  such  facts  become  important,  and  must  be  considered  upon 
the  hearing.  Pco.  ex  rcl.  Peck  v.  Com.  of  Bj'ooklyn,  io6  N.  Y.  67, 
8  St.  Rep.  635.  Where  the  return  traverses  the  facts  alleged  in 
the  •\^■rit  and  the  papers  upon  which  it  was  granted,  the  hearing 
will  be  confined  to  the  facts  stated  in  the  return,  though  such 
statcinents  as  only  amount  to  an  opinion  will  not  be  considered, 
and  the  facts  and  circumstances  relating  thereto  and  appearing 
in  the  writ  and  return  and  papers  must  then  be  considered  and 
the  issue  decided  upon  them.  Peo.  ex  rel.  Kinsclla.  v.  Wiirstei, 
89  Hun,  6,  69  St.  Rep.  446.  At  common  law  only  the  return 
to  the  writ  was  before  the  court  upon  review,  though  §  2138, 
Code  Civil  Procedure,  has  changed  the  former  practice,  and  now, 
therefore,  the  writ  and  the  papers  upon  which  it  was  granted 
must  also  be  looked  to.  It  seems,  however,  that  additional  affi- 
davits will  only  be  considered  when  strictly  in  compliance  with 
§  2139,  Code  Civil  Procedure.  Peo.  ex  rel.  Simons  v.  Murray,  14 
Misc.  177,  69  St.  Rep.  815.  The  court  is  required  to  determine 
the  case  upon  the  petition  writ  and  return,  Peo.  ex  rel.  Hovey 
v.  LeavenwortJi,  90  Hun,  53,  69  St.  Rep.  857.  If  there  is  evi- 
dence in  tlie  record  brought  to  the  Supreme  Court  by  the 
certiorari,  the  court  must  look  into  the  facts.  It  is  the  purpose 
of  the  law  to  give  a  review  in  the  Supreme  Court  by  certiorari, 
not  only  upon  the  law  but  upon  the  evidence  to  the  extent 
specified  in  the  statute.  Code  Civil  Procedure,  §  2140.  Every 
party  who  seeks  such  a  review  is  entitled  to  the  fair  and  judicious 
exercise  of  that  jurisdiction.  Peo.  ex  rel.  ]\IcAleer  v.  French,  II9 
N.  Y.  507.  While  at  common  law  and  under  the  Code  the  return 
seems  to  be  conclusive  upon  both  parties  as  well  as  tlic  court,  yet 
where  it  io  sought  to  review  assessments  by  certiorari  under  the 
statutory  provision  of  chapter  269,  Laws  1880,  the  court  may  take 
evidence,  and  such  testimony  shall  constitute  a  part  of  the  pro- 
ceedings upon  which  the  determination  shall  be  made,  such 
being  the  provision  of  the  statute.     Peo.  ex  rel.  Dexter  \.  Palme  ^', 


WRIT   OF   CERTIORARI.  391 


Art.  8.     Hearing  and  Questions  to  be  Determined 

86  Hun,  515,67  St.  Rep.  701,  33  Supp.  926.  Statements  of 
counsel  on  argument  after  the  evidence  has  been  given  as  to  facts, 
cannot  take  the  place  of  proof,  and  are  no  part  of  the  return, 
whether  they  are  replied  to  or  not  by  the  opposing  counsel. 
Btirnkain  v.  Jones,  49  Supp.  365,  2  Supp.  148,  judgment  modified, 
112  N.  Y.  597.  In  People  v.  Nichols,  58  How.  200,  it  was  held 
that  the  rule  requiring  eight  days'  notice  is  binding  only  so  far 
as  it  is  consistent  with  the  Code,  and  that  as  the  Code  provided 
that  a  notice  for  hearing  a  motion  for  judgment  might  be  made 
less  than  eight  days,  the  Code  must  control,  and  that  an  appli- 
cation for  judgment  so  made  was  regular.  Where  the  relator 
fails  to  deny  or  traverse  the  sufficiency  of  a  return  to  a  writ 
of  certiorari,  the  facts  alleged  therein  will  be  taken  as  conclusive. 
People  ex  rel.  v.  Koch,  2  State  Rep.  no ;  People  v.  Fire  Commis- 
sioners,  73  N.  Y.  439. 

The  codifiers  as  to  §  2140  have  said:  "The  questions  which 
the  foregoing  section  aims  to  settle  have  been  the  subject  of  a 
great  number  of  adjudications  within  this  State,  many  of  which 
are  obsolete  and  contradictory."  (See  2  Abb.  Dig.  (new  ed.)  tit. 
Certiorari,  11-13,  art.  118-139.)  As  late  as  1866  it  was  forcibly 
said  by  Morgan,  J. :  "  The  decisions  of  the  courts,  in  relation  to 
the  office  of  a  common-law  certiorari,  are  so  conflicting  that  it  is 
quite  impossible  to  say  that  any  settled  rule  has  ever  been 
established  in  this  State  which  has  not  been  subsequently  de- 
parted from."  Baldwin  v.  City  of  Buffalo,  35  N.  Y.  380.  Since 
then  these  questions  have  been  again  before  the  Court  of  Appeals 
in  various  cases,  in  the  latest  of  which.  People  v.  Smith,  45  N.  Y. 
772,  decided  in  1871,  Grover,  J.,  lays  down  the  following  rule: 
"  Whatever  may  have  been  the  conflicting  authority  heretofore, 
upon  the  question  whether,  upon  a  common-law  certiorari,  the 
court  can  inquire  into  anything  beyond  the  jurisdiction  of  the 
tribunal  over  the  parties  and  subject-matter,  it  must  not  be 
regarded  as  settled  in  this  State  that  it  is  the  duty  of  the  court, 
in  addition  thereto,  to  examine  the  evidence,  and  determine 
whether  there  was  any  competent  proof  of  the  facts  necessary  to 
authorize  the  adjudication  made,  and  whether,  in  making  it,  any 
rule  of  law  afTecting  the  rights  of  the  parties  has  been  violated." 
Id.  JJ^,  yjy.  If  so  much  certainty  has  at  last  been  attained,  it 
seems  to  be  desirable  to  prevent  the  possibility  of  reopening  the 
questions  thus  decided,  and  to  declare  definitely  that  the  cases 


392 


WRIT   OF   CERTIORARI. 


Art.  8.     Hearing  and  Questions  to  be  Determined. 


holding  the  other  way  are  obsolete  by  incorporating  these  prin- 
ciples into  the  statute.  Subdivisions  i  to  4  of  the  foregoing- 
section  embody  them  correctly,  it  is  believed,  the  changes  of 
language  being  such  only  as  appear  to  be  necessary.  Subdivision 
5  is  not  in  conflict  with  the  ruling  in  45  N.  Y.,  but  it  settles  a 
question  which  was  not  considered  therein,  in  general  accordance 
with  the  opinion  of  Potter,  J.,  in  People  v.  Eddy,  57  Barb.  593; 
see  p.  601." 

In  connection  with  these  remarks  it  must  also  be  noted  that 
subsequent  to  45  N.  Y.  772,  the  line  of  decisions  up  to  1880  ran 
in  a  different  direction,  and  in  his  note  to  this  section  Mr.  Bliss, 
in  his  Annotated  Code,  very  justly  remarks  that  the  section  is 
new,  "  but  the  commissioners  considered,  when  prepared  by  them, 
that  it  made  no  change  in  the  law,   regarding  subdivision   5  as 
consistent  with  45  N.  Y.  772,  and  57  Barb.  593,  which  were  then 
the  latest  cases,  but  it  is  hardly  consistent  with  69  N.  Y.  408,  and 
some  other  cases   since   pubhshed,"    ^s  was  remarked  with  ref- 
erence to  §  2134  as  to  the  contents  of  the  return,  the  decisions 
before  the  Code  were  not  only   in  direct   conflict  with   the  rule 
established  by  this  section,  but  are  not  reconcilable  among  them- 
selves, as  may  be  said  of  the  cases  in  45   N.  Y.  and  68  id.,  just 
cited.     The  old  rule  was  strongly  that  the  question  of  jurisdic- 
tion  only  could  be  determined  on  certiorari.     It  would  seem  the 
courts  then  adopted  a  much  more  liberal  view,  and  allowed  the 
evidence  to  be  looked  into  somewhat,  and  questions  of  law  to  be 
considered  ;  then  the  pendulum  swung  back  and  only  questions 
of  law,  materially  affecting  the  rights  of  the  litigants,  could  be 
determined.     The  first  stage  arrived  at  by  the  courts  is  the  strict 
adherence  to  the  rule  that  on  a  common-law  certiorari  no  other 
questions  can  be  reviewed  than  those  relating  to  the  jurisdiction 
below,  and  to  the  regularity  of  the  proceedings,  and  this  view  is 
held   in  the   earlier  cases.     Birdsall  v.  Phillips,    17  Wend.   464; 
Allynv.  Commissioners,  19  id.  342;  Miller  w.  Bush,  21   id.  651  ; 
People  V.  New  York  City,  2   Hill,  9;  People  v.  Judge  of  Columbia, 
id.  398  ;  Havilandv.  White,  7    How.  154.     To  the  same  effect  is 
the  rule  that  where  the  jurisdiction  of  an  inferior  court  depends 
on  extrinsic  facts,  the  court  will  examine  the  evidence  to  deter- 
mine  the   question  of   jurisdiction,    but   for  no  other  purpose. 
Held,  in  People  v.  Board  of  Metropolitan  Police,  24  How.  481,  and 
substantially   in  People  v.  Sanders,  3    Hun,    16,  also  in  People  v. 


WRIT   OF   CERTIORARI.  393 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

Overseers  of  Ontario,  15  Barb.  286,  that  on  the  return  to  a  common- 
law  certiorari  the  Supreme  Court  will  not  consider  the  weight  of 
evidence,  but  they  will  determine  whether  there  was  any  legal 
evidence  to  support  the  proceedings  below.  But  it  was  never- 
theless held  during  this  period  that  on  a  certiorari  to  review 
summary  proceedings  against  a  tenant  holding  over,  the  court 
had  power  to  look  into  the  evidence  to  see  whether  it  authorized 
the  findings.  Anderso7t  v.  Prindle,  23  Wend.  616;  Niblo  v.  Post, 
25  id.  280;  Benja^nin  v.  Benjajnin,  5  N.  Y.  383;  Morewoodv. 
Hollister,  6  id.  309;  Brick  v.  Binninger,  3  Barb.  391  :  People  v. 
Rochester,  21  id.  656;  Carter  v.  Newbold,  y  Wow.  166.  It  was 
also  held  that  the  court  would  look  only  into  the  facts  returned, 
on  the  question  of  jurisdiction,  and  could  not  assume  there  was 
other  evidence  to  sustain  jurisdiction.  People  v.  Soper,  7  N.  Y. 
428.  But  that  a  common-law  certiorari  in  a  bastardy  case  did 
not  bring  up  the  evidence.     People  v.  Duell,  16  How.  43. 

It  was  subsequently  held  that  where  the  decision  of  a  public 
board  is  made  final  and  conclusive  by  statute,  the  court  cannot 
look  into  the  evidence  to  sustain  it  in  the  absence  of  a  jurisdic- 
tional fact.  People  v.  Canal  Board,  7  Lans.  220.  But  see  rule  laid 
down  in  Peo.  ex  rel.  McAleer  v.  French,  1 19  N.  Y.  $oy,post.  It  was 
also  held  that  on  a  certiorari  to  review  the  decision  of  the  canal 
commissioners,  only  legal  and  constitutional  questions  can  be 
considered.  People  v.  Carrington,  2  Lans.  368.  As  to  certiorari 
to  review  an  assessment  under  the  general  Tax  Law,  it  was  held 
{People  V.  Fredericks,  48  Barb.  173)  that  the  only  questions  before 
the  court  were  whether  the  assessors  had  jurisdiction,  and  whether 
they  had  kept  within  it.  It  was  also  said  that,  on  certiorari  to 
review  assessment  of  damages,  the  court  could  not  reverse  the 
assessment  as  to  the  amount  of  damages,  but  might  as  to  the 
principle  on  which  they  were  assessed.  Baldwin  v.  Calkitis,  10 
Wend.  167.  But  see  Matter  of  Mount  Morris  Square,  2  Hill, 
14.  In  People  v.  F erris,  36  N.  Y.  218,  it  was  held  that,  on  cer- 
tiorari to  commissioners  of  highways,  the  Supreme  Court  could 
only  afBrm  or  reverse  the  proceeding. 

Shortly  after,  it  was  said,  in  People  v.  Assessors  of  Brooklyn,  39 
N.  Y.  81,  that  a  common-law  certiorari  brought  up  for  review  all 
questions  of  jurisdiction,  poweror  authority  in  the  inferior  tribunal, 
and  all  questions  of  the  regularity  of  the  proceedings  which  seems 
to  mark  what  appears  to  be  the  transition  state  of  the  law  on  this 


394 


WRIT   OF   CERTIORARI. 


Art.   8.     Hearing  and  Questions  to  be  Determined. 


subject.  And  in  People  v=  S^nith,  45  N.  Y.  772,  and  People  v.  Eddy, 
57  Barb.  593,  it  was  determined  that,  in  a  town-bonding  case,  on 
the  return  to  a  common-law  writ  of  certiorari,  the  court  was  not 
limited  to  the  inquiry  whether  jurisdiction  of  the  parties  and 
subject-matter  was  acquired,  but  should  examine  the  evidence 
and  determine  whether  there  was  any  competent  proof  of  the 
facts  necessary  to  authorize  the  adjudication  to  be  made,  and 
whether,  in  making  it,  any  rule  of  law  affecting  the  rights  of  the 
petitioner  had  been  violated,  and  that  the  court  might  examine 
as  to  whether  the  inferior  tribunal  had  jurisdiction.  Whether 
the  moving  party  had,  on  all  the  facts  proved,  made  out  a  case, 
whether  the  testimony  supported  the  matter  charged,  but  with 
the  qualification  that  where  some  evidence  is  given  to  support  the 
case,  however  slight,  if  judgment  be  given  thereon,  where  there 
is  evidence  upon  the  merits  on  both  sides,  the  court  will  not  re- 
verse unless  the  case  is  one  in  which  the  weight  of  evidence  is 
very  greatly  preponderating,  or  is  so  strikingly  so,  as  to  create  the 
suspicion  of  injustice  arising  from  prejudice  or  passion.  The 
same  rule  is  held  in  People  v.  Van  Alstyne,  32  Barb.  131  ;  People 
V.  Supervisors,  57  id.  377.  And  it  is  held  \\\  People  v.  Assessors  of 
Albany,  40  N.  Y.  154,  that  a  common-law  certiorari^  to  assessors, 
brings  up  the  merits  as  well  as  the  questions  of  jurisdiction  and 
regularity,  and  the  same  general  principle  is  held  in  People  v. 
Board  of  Police,  39  N.  Y.  506;  People  v.  Commissioners,  54  Barb. 
145.  It  was  determined  in  People  v.  Laivrenee,  id.  589,  and  People 
V.  Tubbs,  59  id.  401,  that  where  the  writ  was  given  by  statute, 
the  authority  of  the  court  was  not  limited,  as  at  common  law,  to 
questions  of  jurisdiction  and  regularity,  but  it  might  look  into 
the  merits  and  examine  the  evidence,  and  afifirm,  reverse,  or  quash 
the  proceedings,  as  justice  may  require.  It  was  in  view  of  these 
decisions,  and  to  conform  the  practice  to  the  rule  as  there  settled 
that  the  codifiers  prepared  this  section,  and  these  cases  probably 
best  interpret  its  scope  and  meaning. 

However,  subsequent  to  the  rendering  of  these  decisions,  and 
in  matters  arising  before  the  enactment  of  the  Code,  a  somewhat 
different  rule  was  held.  The  case  cited  by  Bliss  {People  v.  Board 
of  Police,  69  N.  Y.  408)  is,  perhaps,  a  typical  case  of  this  class, 
showing  the  backward  swing  of  the  judicial  pendulum  in  holding 
that  only  errors  of  law  affecting  materially  the  rights  of  the 
parties  may  be  corrected   on  common-law  certiorari.     The  evi- 


WRIT    OF    CERTIORARI.  395 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

dence  may  be  examined  to  determine  whether  there  is  any  com- 
petent proof  to  justify  the  adjudications  made,  but  questions  of 
fact  on  conflicting  evidence,  or  conflicting  inferences  from  facts 
or  matters  of  judgment  or  discretion,  cannot  be  reviewed.  It 
was  held,  in  People  v.  Hair,  29  Hun,  125,  that  errors  in  the  ad- 
mission or  rejection  of  evidence  cannot  be  reviewed  by  certiorari. 
The  same  rule  has  been  recently  held  in  People  ex  rcl.  v.  Board 
of  State  Assessors,  22  Week.  Dig.  453,  as  to  review  of  proceed- 
ings of  board  of  equalization.  People  v.  Keator,  17  Abb.  N.  C.  369. 
To  the  same  general  effect  is  People  v.  Steele,  56  N.  Y.  664, 
holding  that  it  is  the  ofifice  of  a  common-law  certiorari  to  re- 
view the  determination  upon  the  same  evidence,  and  to  examine 
whether  the  inferior  tribunal  has  conformed  in  its  proceedings  to 
the  express  terms  of  the  statute  law,  and  recognized  in  its  deter- 
mination the  principles' of  the  common  law  ;  and  if  there  were 
legal  and  sufficient  evidence  to  authorize  the  finding,  the  decision 
upon  the  question  of  fact  will  not  be  disturbed.  And  in  People 
V.  Police  Commissioners,  6  Hun,  229;  People  v.  Police  Commis- 
sioners, 52  How.  289;  People  v.  Wcigant,  14  Hun,  546,  it  is  held 
that,  on  a  common-law  certiorari,  it  is  the  duty  of  the  court  to 
see  whether  there  was  any  competent  proof  to  sustain  the  adjudi- 
cation, and  whether,  in  making  it,  any  rule  of  law  has  been 
violated,  but  mere  matters  of  detail  or  of  discretion  will  not  be 
reviewed.  It  is  also  determined  in  People  v.  Board  of  Police,  ^2 
N.  Y.  415,  that  the  court  is  not  confined  to  the  mere  question  of 
jurisdiction,  but  will  look  into  the  proceedings,  and  if  the  ad- 
judication is  unsupported  by  any  evidence,  will  reverse  it.  Upon 
a  certiorari  to  review  proceedings  in  insolvency,  the  appellate 
court  may  determine  not  only  the  question  of  jurisdiction,  but 
the  regularity  of  the  proceedings  below.  People  v.  Sutherland,  16 
Hun,  192.  Since  the  Code  of  Civil  Procedure,  the  decisions  have 
been  in  accordance  with  the  terms  of  this  section,  and  in  con- 
formity with  the  views  expressed  in  45  N.  Y.  772,  supra.  In  People 
v.Fire  Commissioners,  30  Hun,  376,  it  was  decided  that,  under  this 
section,  the  court  might,  on  certiorari,  review  the  weight  of 
evidence  ;  and  distinguished  People  v.  French,  92  N.  Y.  306,  which 
held  that  this  section  only  applied  to  cases  on  the  hearing,  and 
not  on  appeal  to  the  Court  of  Appeals.  The  Court  of  Appeals 
held  the  same  rule  as  applicable  to  appeals  to  that  court  in  People 
V.  Commissioners,  93  N.  Y.  97,  as  follows :  "  Assuming  the  rule 


396  WRIT   OF   CERTIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

to  be  that  the  facts  involved  in  the  determination  are  satisfac- 
torily supported  by  the  evidence,  so  that  the  verdict  of  a  jury 
finding  such  facts  could  not  be  set  aside  as  against  the  weight  of 
evidence,  we  are  unable  to  see  how  it  can  be  claimed  that  the 
decision  of  the  commissioners  was  not  justified." 

The  scope  of  a  review  upon  a  certiorari  has  been  enlarged,  and 
a  judgment  may  be  reversed  if  there  is  such  a  preponderance  of 
proof  against  the  existence  of  the  facts  found  against  the  relator 
as  would,  had  the  facts  been  found  by  a  jury,  call  for  a  reversal  of 
the  verdict  as  against  the  weight  of  evidence.  People  v.  Jordan, 
I  Civ.  Pro.  328.  The  Court  of  Appeals  held  the  rule  as  to  review 
in  that  court  as  in  previous  cases  cited  in  People  v.  Fire  Commis- 
sioners, 96  N.  Y.  644,  citing  People  v.  Fire  Commissioners,  82  id. 
358.  The  court  should  not  reverse  for  error  in  finding  of  fact  by 
court  below  unless  it  was  clearly  against  preponderance  of  proof, 
so  held  under  chapter  269,  Laws  of  1880,  and  on  review  of  action 
of  State  assessors.  People  v.  Keator,  17  Abb.  N.  C.  369  ;  People 
V.  Williams,  id.  366.  A  conclusion  of  fact,  if  without  competent 
proof  to  support  it  or  opposed  by  a  decided  or  strong  preponder- 
ance of  evidence,  may  be  reviewed  by  the  court.  A  decision  ad- 
verse to  the  evidence  and  the  conceded  truth  was  an  error  sub- 
ject to  judicial  review  and  correction.  People  v.  Zoll,  97  N.  Y. 
203  ;  People  v.  Heldon,  32  Hun,  299,  holds  that,  on  certiorari  to 
review  the  decisions  of  referees  appointed  to  hear  an  appeal  from 
determination  of  highway  commissioners,  a  presumption  arises 
that  all  the  preliminary  requirements  of  the  statute  have  been 
complied  with,  and  that  the  only  proceedings  to  be  reviewed 
were  those  connected  with  the  inquiry  as  to  the  fitness  or  unfit- 
ness of  the  road.  In  case  of  removal  of  auditor  of  accounts  by 
comptroller  of  New  York  City  it  was  held  that  it  was  not  for  the 
court  to  weigh  the  evidence  so  as  to  substitute  its  judgment  for 
that  of  the  comptroller.  People  v.  Grant,  Abb.  Dig.  1884,  p.  51, 
§  10.  The  question  of  extent  of  review  of  proceedings  of  inferior 
tribunals  by  certiorari  is  fully  considered  in  People  v.  McCarthy, 
102  N.  Y.  630,  and  is  held  in  accordance  with  rules  laid  down  in 
the  Court  of  Appeals  under  the  present  Code.  The  language  of 
the  section  must,  therefore,  be  interpreted  in  the  light  of  the  de- 
cisions since  its  enactment.  Previous  decisions  will  be  found 
convenient  for  reference  in  all  cases  where  no  change  has  been 
made  from  former  practice. 


WRIT    OF    CERTIORARI.  397 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

Unless  jurisdiction  is  expressly  taken  away  certiorari  lies  even 
when  the  decision  is  declared  final,  by  the  older  cases.  Leroy  v. 
Mayor,  20  Johns.  430;  Bradhurst  v.  Turnpike,  16  id.  8  ;  Ex  parte 
Mayor  of  Albany,  23  Wend.  277.  But  People  v.  Bctts,  55  N.  Y. 
600,  held  the  rule  to  be  that  where  the  statute  declares  the  de- 
cision final,  certiorari  will  not  lie,  but  it  seems  to  be  subject  to 
the  qualification  laid  down  in  People  v.  Freeman,  3  Lans.  148  ; 
People  V.  Canal  Board,  7  id.  220;  People  v.  Dewey,  i  Hun,  529, 
that  the  court  may  still  inquire  into  the  jurisdiction  of  the  in- 
ferior tribunal  to  pass  upon  the  subject-matter,  and  whether  with- 
in the  jurisdiction  the  acts  performed  were  within  the  powers 
conferred  by  law. 

The  objection  that  a  certiorari  was  improperly  awarded  may 
be  considered  on  a  return  and  hearing  on  the  merits.  Moving 
for  an  amended  return  is  not  a  waiver  of  motion  to  quash.  People 
V.  McDonald,  2  Hun,  70.  On  certiorari  in  habeas  proceedings 
the  objection  that  there  was  no  traverse  to  the  return  cannot  be 
taken  if  evidence  was  taken  and  considered  without  objection. 
People  v.  Carpenter,  46  Barb.  619.  If  evidence  was  admitted 
without  objection  its  competency  cannot  be  passed  upon  by  cer- 
tiorari. People  V.  Sanders,  3  Hun,  16.  Where  it  appears  by  the 
return  to  the  writ  that  the  inferior  tribunal  was  entirely  without 
jurisdiction  it  is  wholly  immaterial  whether  the  relator  raised  the 
objection  below  or  not.  People  v.  Robertson,  26  How.  90.  It 
was  said  in  Commissioners  v.  Judges  of  Putnam,  7  Wend.  264, 
that  where  the  contest  was  solely  on  the  merits  objection  could 
not  afterward  be  taken,  that  one  of  the  judges  whose  decision 
was  appealed  from  had  previously  passed  on  the  same  question. 

A  jurisdictional  question  may  be  reviewed  upon  the  evidence 
on  the  return  to  the  rrr/wr^?/-/.  Stone  v.  Mayor,  25  Wend.  157. 
On  certiorari  to  a  municipal  corporation  to  review  proceedings 
on  a  local  improvement  the  court  will  review  the  assessment  only 
as  to  the  principle  of  apportionment  and  not  as  to  the  amount 
charged  on  an  individual.  Boiiton  v.  President,  2  Wend.  395  ; 
Owners  of  Ground  v.  Mayor,  1 5  id.  374  ;  Ex  parte  Mayor  of  Albany, 
23  id.  277.  In  reviewing  assessments  for  a  sewer  the  court  can- 
not interfere  as  to  the  quantum  of  benefit  to  be  derived  by  each 
lot,  but  may  decide  as  to  the  persons  to  be  affected  on  a  proper 
construction  of  the  law.     Leroy  v.  Mayor,  20  Johns.  430. 

The    court    will  not,  on  certiorari,   vacate  proceedings   for  a 


398  WRIT    OF   CERTIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

local  improvement  for  an  irregularity  which  does  not  go  to  the 
entire  assessment,  where  there  is  a  sufficient  remedy  otherwise  for 
irregularity.  People  v.  City  of  Brooklyn,  14  Abb.  (N.  S.)  115. 
Mere  irregularities  in  submitting  to  the  electors  questions  as  to 
an  improvement  as  authorized  by  statute,  which  are  executive 
or  ministerial  acts,  cannot  be  corrected  by  certiorari.  People  v. 
Trustees  of  Danville,  i  Hun,  593.  On  certiorari  to  s.  city  to  re- 
view proceedings  on  assessment  of  expenses  for  a  bridge,  the 
court  will  not,  as  ground  for  setting  aside  the  assessment,  consider 
the  validity  of  a  contract  for  building  the  bridge.  People  v.  Cojn- 
mon  Council,  5  Lans.  142. 

Certiorari  lies  to  a  board  of  supervisors  to  review  the  rejection  of 
a  claim  declared  by  the  legislature  to  be  a  lawful  charge  against 
the  county,  when  rejected  on  the  ground  that  it  is  not  just  and 
legal.  The  court  can  reverse  the  proceeding,  and  the  relator  can 
then  mandamus,  if  necessary.  People  v.  Supervisors  of  Madison, 
51  N.  Y.  442.  On  certiorari  to  review  town-bonding  proceedings, 
the  question  of  eligibility  of  the  commissioners  named  to  issue 
bonds  could  not  be  raised,  where  the  return  of  the  county  judge 
showed  them  to  be  proper  persons.  People  v.  Hulbert,  59  Barb. 
446.  It  is  held  in  People  v.  Sheriff,  29  id.  622,  that  the  Supreme 
Court  cannot  review,  on  certiorari,  the  judgment  of  a  court  com- 
mitting for  contempt.  The  court  cannot  take  notice,  on  cer- 
tiorari, of  any  fact  outside  the  record,  and  where  matters  do  not 
appear  by  the  record  they  cannot  be  reviewed.  People  v.  IV/ieeler, 
21  N.  Y.  82.  In  cases  where  the  writ  is  authorized  by  statute, 
the  authority  of  the  court  is  not  limited  to  questions  of  jurisdic- 
tion and  regularity.  It  has  power,  also,  to  examine  upon  the 
merits  every  decision  of  the  court  or  officer  upon  questions  of 
law,  and  to  look  into  the  evidence  and  to  affirm,  reverse,  or  quash 
the  proceedings  as  justice  may  require.  People  v.  Lawrence,  54 
Barb.  589.  The  decision  of  board  of  education  of  New  York  City 
in  removing  a  teacher  cannot  be  reviewed,  as  the  power  of  the 
board  is  discretionary.  People  v.  Board  of  Education,  3  Hun,  177. 
The  proceedings  of  the  board  of  police  are  to  be  reviewed 
with  liberality  rather  than  severe  criticism,  with  a  view  to  sus- 
tain, rather  than  reverse,  their  decisions.  People  v.  Board  of 
Couiuiissioners,  8  Week.  Dig.  466.  It  is  said  in  People  v.  Board  of 
Fire  Commissioners,  5  id.  486,  tiiat  the  court  can,  on  certiorari, 
review  the  whole  evidence  as  to  tlie  conviction  and  removal  of  a 


WRIT   OF    CERTIORARI.  399 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

regular  clerk  in  the  fire  department  (see  cases  cited  heretofore), 
v7h.\\Q  People  v.  Board  of  Police  Commissioners,  ii  Hun,  513,  af- 
firmed in  the  Court  of  Appeals,  52  How.  289,  held  that  the  writ 
brought  up  only  the  question  whether  the  board  had  jurisdiction 
of  the  relator  and  of  the  subject-matter,  whether  he  was  regularly- 
tried,  and  whether  legal  and  sufficient  testimony  was  given  suf- 
ficient to  justify  the  board  in  finding  him  guilty.  See  Pcnnie  v. 
City  of  Brooklyn,  97  N.  Y.  654;  People  v.  Commissioners,  3  St. 
Rep.  615.  Justices' judgments  can  no  longer  be  reviewed  by 
certiorari.  People  v.  Sleight,  2  Hun,  632.  The  title  to  office,  of 
persons  acting  as  police  justices  in  New  York  City  with  color  of 
title,  cannot  be  tried  on  certiorari  to  review  a  judgment  rendered 
by  them.     Coyle  v.  Sherwood,  i  Hun,  272. 

The  decision  of  a  comptroller  in  fixing  the  amount  of  capital 
stock  of  a  foreign  corporation  for  purposes  of  assessment,  will  not 
be  disturbed  by  the  court  in  the  absence  of  evidence  that  the 
amount  so  fixed  was  erroneous.  The  finding  of  the  comptroller 
upon  such  a  question  within  his  jurisdiction  is  like  the  verdict  of 
a  jury.  People  ex  rel.  S.  T.  C  Co.  v.  Wemple,  42  St.  Rep.  60,  16 
Supp.  603.  The  comptroller  as  a  public  officer  is  charged  with 
the  duty  of  imposing  taxes,  and  his  acts  and  determinations  can- 
not be  reversed  unless  it  clearly  appears  that  his  determination 
was  against  the  weight  of  evidence  upon  questions  of  fact,  or 
unless  it  clearly  appears  that  his  conclusions  of  law  were  erroneous. 
People  ex  rel.  E.  E.  I.  Co.  v.  Wemple,  61  Hun,  64,  39  St.  Rep.  613, 
15  Supp.  717.  Commissioners  of  the  land  office  may  exercise 
their  discretion  in  making  a  grant,  but  their  decision  as  to  who 
is  the  owner  of  adjacent  uplands  is  a  judicial  one  and  reviewable 
upon  certiorari  where  such  determination  involves  the  question 
of  the  relator's  title.  People  ex  rel.  Bnrnham  m.  Jones,  112  N.  Y. 
609.  One  of  the  offices  of  the  writ  of  certiorari,  under  §  2140, 
Code  Civ,  Proc,  is  to  inquire  into  the  jurisdiction  of  the  body  or 
officer  making  the  determination  which  is  the  subject  of  review. 
People  ex  rel.  Springstedv.  Tritstees  of  Cobleskill,  ^.gSt.  Rep.  48,  20 
Supp.  920 ;  People  ex  rel.  Cook  v.  Hildreth,  126  N.  Y.  360,  37  St.  Rep, 
393.  Where  by  statute  the  secretary  of  State,  the  comptroller, 
and  the  State  reporter  as  a  contract  board  had  discretion  in  mak- 
ing a  Contract  for  the  publication  of  the  reports  of  the  Court  of 
Appeals,  and  made  such  a  contract,  and  where,  upon  a  writ  of  cer- 
tiorari to  review  such  decision,  no  determination  was  shown  to 


400 


WRIT    OF   CERTIORARI. 


Art.  8.     Hearing  and  Questions  to  be  Determined. 


have  been  made  upon  evidence,  the  writ  of  certiorari  will  not  He, 
the  board  having  the  right  to  the  exereise  of  such  discretion. 
Neither  can  the  decision  be  reviewed  under  the  authority  of  subdi- 
vision 3  of  §  2140,  as  there  is  no  proper  relator  whose  rights  have 
been  violated.     People  v.  Carr,  23  Supp.  113. 

Certiorari  x?,  a  proper  remedy  to  review  the  determination  of  a 
board  of  health,  and  it  is   the  duty  of  the  court  to  determine  by 
such  writ,  whether  jurisdiction    was  obtained   by  the    board    of 
health,  and  whether  the   authority  conferred  upon  it  has  been 
pursued  in  the  mode  required  by  law  in  order  to  authorize  it  to 
make  the  determination.     People  ex  rel.  N.  V.  C.  &  H.  R.  R.  Co. 
V.  Board  of  Health  of  Seneca  Falls,  58  Hun,  598,  12  Supp.  562,  35 
St.  Rep.  413.     Upon  certiorari  the  court  will  indulge  the  same 
presumption  in   favor  of  a  determination   of  a  board  of  police 
commissioners  in  removing  an  officer,  that  it  would  in  support 
of  a  verdict  of  a  jury.     People  ex  rel.  Doherty  v.  Commissioners, 
84  Hun,  66,65  St.  Rep.  175.     Whether  a  default  shall  be  opened 
and   a  rehearing   had   where  a  teacher  has  been  dismissed  by  a 
board   of  education,  and  has  failed  to  appear  at  the  time  set  for 
a  hearing,  is  purely  a  matter  of  discretion  of  the  board  of  educa- 
tion, and  therefore  their  determination  is  not  subject  to  revision 
and  reversal  by  another  tribunal.     "  Certiorari  to  compel  the  con- 
cession of  a  favor  would  be  an  anomaly  in  jurisprudence."    Jordan 
V.  Board  of  Education,  14  Misc.  1 19,  69  St.  Rep.  623,  25  Civ.  Proc. 
89.     Where  there  is  competent  proof  of  the  facts  necessary  to  be 
proved  in  order  to  authorize  the  determination  of  police  commis- 
sioners in  removing  an  officer,  and  there  is  no  preponderance  of 
proof  against   the  existence   of  any   of  these  facts   that  would 
justify  the  court  in  setting  aside  the  finding  of  a  jury  as  against 
the  weight  of  evidence,  the   decision   of  the  commissioners  will 
not   be  disturbed.     People  ex  rel.  Allen  v.  Welles,  14  Misc.  226. 
Where  a  town   board   refuses  to  audit  the  claim  of  a  contractor 
at  its  full  amount,  but   assumes   conditionally  to  audit  the  claim 
for  a  less  amount,  a  rule   of  law  has  been  violated  to   the  prej- 
udice of  the   relator  under   subdivision  3  of  §  2140,  and  in  such 
case  the  court  has  power  to   amend   and   modify  the  determina- 
tion of  the  town  board.     People  ex  rel.  Groton  Co.  v.  Town  Board 
of  Campbell,  92  Hun,  585.     In  reviewing  the  action  of  a  board  of 
taxes  and  assessment  of  the  city  of  New  York  in  dismissing  a 
tax  assessor  and  discharged  soldier  because  of  physical  incapacity, 


WRIT   OF   CERTIORARI.  4OI 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

it  is  the  duty  of  the  court  to  see  if  any  rule  of  law  affecting  the 
rights  of  the  relator  was  violated  to  his  prejudice,  and  whether 
there  was  any  competent  proof  of  all  the  facts  necessary  to  be 
proven  to  justify  the  determination.  People  ex  rel.  Haverty  v. 
Barker,  i  App.  Div.  533.  See  this  case  as  to  what  was  insufHicient 
and  inadmissible  evidence  to  warrant  dismissal  under  the  cir- 
cumstances. 

While  no  employee  in  a  bureau  of  any  of  the  departments  of 
the  City  Government  of  the  city  of  New  York  is  entitled  to  a 
formal  trial  upon  evidence  in  the  proceeding  to  dismiss  him,  as 
are  police  officers  and  firemen,  yet,  such  employee  is  entitled  to 
a  hearing,  and  his  explanation  must  be  received  and  acted  upon 
in  good  faith  and  not  arbitrarily  ;  such  decision  may  be  reviewed 
by  certiorari.  People  ex  rel.  Mitchel  v.  La  Grange,  2  App.  Div. 
445.  See  this  case  for  facts  not  warranting  a  dismissal.  The 
decision  of  police  commissioners  in  removing  a  policeman  will 
not  be  disturbed  Avhere  the  evidence  does  not  show  such 
preponderance  of  proof,  as  would  justify  setting  aside  the  ver- 
dict of  a  jury,  or  where  the  decision  is  not  sustained  by  com- 
petent proof  under  §  2140.  People  ex  rel.  O' Sullivan  v.  French, 
27  St.  Rep.  87,  7  Supp.  489.  Even  where  manifest  injustice  has 
been  done  in  removing  a  police  officer,  the  court  will  not  set 
aside  the  decision  of  the  police  commissioners  where  the  excuse 
given  by  the  relator  for  the  act  causing  his  removal  was  a  matter 
solely  within  the  judgment  of  the  police  commissioners.  Bart- 
lett,  J.,  dissented  under  the  authority  of  subdivision  i  of  §  2140. 
People  ex  rel.  Hogan  v.  French,  27  St.  Rep.  130,  7  Supp.  460,  re- 
versed, 119  N.  Y.  502. 

Even  at  common  law,  and  previous  to  the  Code,  the  Supreme 
Court  had  power  to  look  into  the  evidence  brought  before  it  in 
reviewing  the  determination  of  police  commissioners  and  dis- 
charging an  officer;  and  now  by  §  2140  of  the  Code  of  Civil 
Procedure  upon  such  hearing,  it  is  the  duty  of  the  Supreme 
Court  not  only  to  inquire  whether  there  is  any  competent  proof 
tending  to  establish  the  guilt  of  the  accused  person,  but  it  must 
also  look  into  the  evidence,  and  if  it  finds  that  there  is  a  pre- 
ponderance of  evidence  against  the  determination  of  the  com- 
missioners, then  it  has  the  same  jurisdiction  to  reverse  the  de- 
termination that  it  has  to  set  aside  the  verdict  of  a  jury  as 
against  the  weight  of  evidence,  and  every  party  who  seeks  such 

26 


402  WRIT   OF   CERTIORARI. 


Art.  8.     Hearing  and  Questions  to  be  Detertniued. 


a  review  is  entitled  to  a  fair  and  judicious  exercise  of  that 
jurisdiction.  McAleer  v.  French^  I19  N.  Y.  507,  30  St.  Rep.  75. 
Where  the  relator,  a  police  officer,  was  discharged  by  the  com- 
missioners for  altercation  with  a  brother  officer,  in  which  the 
proof  showed  him  to  be  less  to  blame  than  the  other  officer,  who 
was  only  fined  thirty  days'  pay,  it  was  held  that  the  punishment 
was  too  harsh  and  unequal  and  that  the  decision  should  be  re- 
versed, under  sub.  5,  §  2140,  Code  Civ.  Proc.  People  ex  rel.  Clar- 
son  V.  French^  i  Supp.  878.  Where  the  evidence  adduced  before 
police  commissioners  is  direct  and  positive,  they  are  justified  in 
dismissing  an  officer  for  intoxication,  and  the  decision  will  not 
be  set  aside  under  this  section.  People  ex  rel.  Foley  v.  French,  20 
St.  Rep.  913,  4  Supp.  172.  The  decision  of  assessors  upon  a 
claim  for  damages  sustained  by  reason  of  a  change  of  the  grade 
of  a  city  street  is  open  to  review  under  subdivision  3,  §  2140, 
Code  Civ.  Proc,  which  provides  that  the  court  must  inquire 
*'  whether  in  making  the  determination  any  rule  of  law  affecting 
the  rights  of  the  party  thereto  has  been  violated  to  the  prejudice 
of  the  relator,"  even  when  the  facts  are  conceded  in  the  return. 
Thus  where  it  was  conceded  that  damages  were  in  fact  sustained, 
but  that  the  assessors  arrived  at  their  conclusion  by  offsetting 
benefits,  held,  that  a  question  of  law  was  presented  and  the  de- 
cision of  the  assessors  thereon  was  open  to  review.  People  ex 
rel.  Brisbain  v.  Zoll,  97  N.  Y.  208.  It  seems  that  the  rule  is  well 
established  that  the  courts,  in  reviewing  by  certiorari  the  pro- 
ceedings of  police  or  fire  commissioners,  are  only  called  upon  to 
reverse  :  i.  If  the  accused  on  the  whole  case  did  not  have  a  fair 
trial  ;  2.  If  on  the  facts  the  decision  was  against  the  weight  of 
evidence.  And  in  passing  upon  the  proceedings  before  police 
commissioners,  the  court  will  not  reverse  for  trifling  errors  but 
will  look  to  the  whole  case.  People  ex  rel.  Muldoon  v.  Hayden,  7 
Misc.  278,  58  St.  Rep.  537. 

The  questions  to  be  determined  upon  the  hearing  of  certiorari 
are  now  specifically  stated  in  §  2140  of  the  Code,  which  does  not 
permit  a  review  of  matters  committed  by  law  to  the  judgment 
or  discretion  of  a  lower  tribunal,  and  therefore  under  Laws  1893, 
chapter  481,  amending  the  Excise  Law  and  giving  a  review  of  the 
decision  of  the  commissioners  in  refusing  a  license  where  such 
license  has  been  "arbitrarily  or  unreasonably  refused,"  the 
court  has  no  power  of  independent  inquiry  and  is  limited  solely 


WRIT   OF   CERTIORARI.  403 


Art.  8.     Hearing  and  Questions  to  be  Determined. 


to  a  review  of  the  record  presented.  People  ex  rcl.  Kidd  v.  Com- 
missioners of  Excise,  2^  Supp.  874.  While  the  court  upon  cer- 
tiorari may  review  the  action  of  a  board  of  supervisors,  it  will 
not  reverse  their  decision  for  receiving  incompetent  evidence 
ordinarily,  but  where  they  fail  to  audit  the  bill  properly,  in  neg- 
lecting to  pass  upon  the  items  of  the  relator's  claim,  their 
determination  should  be  set  aside  under  subdivision  3  of  § 
2140,  as  the  allowance  of  a  gross  sum  instead  of  passing  upon 
the  items  is  not  a  proper  audit.  People  ex  rel.  Sutliffv.  Super- 
visors, 74  Hun  255,  55  St.  Rep.  891.  While  the  Supreme  Court 
has  power,  under  §  2140  of  the  Code  Civ.  Proc,  to  hear  evidence 
and  set  aside  a  verdict,  yet  the  Court  of  Appeals  has  no  such 
power.  If  there  is  any  evidence  fairly  sustaining  the  determina- 
tion, the  Court  of  Appeals  will  not  interfere  therewith.  Never- 
theless, where  there  is  no  real  conflict  in  the  evidence,  and  there 
is  thus  a  substantial  failure  in  evidence  to  sustain  a  determination, 
the  Court  of  Appeals  will  review  the  same  and  reverse  the  decision. 
People  ex  rel.  Coyle  v.  Martin,  142  N.  Y.  354,  59  St.  Rep.  25. 
Section  2140  of  the  Code  Civ.  Proc.  regulates  the  jurisdiction  of 
the  court  in  respect  to  the  questions  to  be  reviewed,  and  the 
following  §  2 141,  regulating  the  mode  in  which  the  deter- 
mination shall  be  declared,  does  not  enlarge  the  jurisdiction 
prescribed  by  §  2140.  People  ex  rel.  Kent  v.  Board  of  Fire  Com- 
missioners, TOO  N.  Y.  82. 

Under  §  2140,  regulating  the  matters  to  be  determined  by  the 
court  upon  the  hearing,  the  question  whether  there  was  a  failure 
to  give  the  two  days'  notice  of  trial  prescribed  by  the  rules  of 
the  police  department,  where  charges  have  been  preferred  against 
a  member  of  the  police  force,  is  a  matter  essential  to  the  juris- 
diction of  the  police  commissioners  to  try  the  relator,  and  the 
question  may  be  determined  upon  certiorari.  Note  subdivision 
2  of  this  section.     People  ex  rcl.  Jordan  v.  Martin,  152  N.  Y.  317. 

Under  subdivision  5  of  §  2140,  the  General  Term  may  set  aside 
the  adjudication  of  police  commissioners  in  disciplining  an  ofificer 
on  the  merits,  although  there  may  be  some  evidence  to  sustain 
it;  if  the  preponderance  of  truth  is  such  that  if  the  facts  had 
been  found  by  a  jury  on  the  trial  of  an  issue  in  the  Supreme 
Court,  the  verdict  would  be  set  aside  as  against  the  weight  of 
evidence.  But  such  review  of  the  merits  is  ended  with  the  decision 
of  the  General  Term,  and  on  appeal  only  questions  of  law  will  be 


404  WRIT   OF   CERTIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

considered.     People  ex  rel.  O' Callahan  v.  French,   123   N.  Y.  636, 
y:,  St.  Rep.  599. 

Under  §  2140,  the  Supreme  Court  may  inquire  not  only  whether 
there  was  competent  proof  of  all  the  facts  necessary  to  be  proved 
in  order  to  authorize  police  commissioners  in  making  a  deter- 
mination, removing  an  of^cer,  but  it  must  also  look  into  the 
evidence,  and  if  it  finds  that  there  is  a  preponderance  against  the 
determination  of  the  commissioners,  it  has  the  same  jurisdiction 
to  reverse  the  determination  that  it  now  has  to  set  aside  the 
verdict  of  the  jury  as  against  the  weight  of  the  evidence.  People 
ex  rel.  Malioncy  v.  McLean,  33  St.  Rep.  966,  ii  Supp.  487. 
However,  where  theie  is  no  preponderance  of  evidence,  such  as 
would  allow  a  verdict  to  be  set  aside,  the  same  controlling  effect 
must  be  given  to  the  decision,  as  to  facts  of  the  police  commis- 
sioners, as  would  be  given  to  the  decision  of  a  jury.  People  ex 
rel.  Dolan  v.  McLean,  32  St.  Rep.  839,  1 1  Supp.  iii.  Under  sub- 
divisions 4  and  5  of  §  2140,  the  power  of  the  court  is  no  greater 
than  it  would  be  over  the  verdict  of  a  jury  rendered  on  the  trial 
of  an  action.  Wheie  the  verdict  of  a  jury  would  be  conclusive 
as  to  facts,  the  court  cannot  set  aside  the  decision  of  commis- 
sioners as  to  the  same  facts.  People  ex  rel.  Winchell  v.  McLean, 
36  St.  Rep.  999.  It  seems  that  the  determination  of  the  board 
of  assessors  as  to  wlio  was  benefited  by  an  improvement,  and 
the  extent  of  such  benefit,  of  which  questions  they  are  made 
exclusive  judges  by  the  city  charter,  cannot  be  reviewed  upon 
certiorari  except  for  errors  of  law.  People  ex  rel.  Davidson  v. 
Gilon,  126  N.  Y.  157  ;  People  ex  rel.  James  v.  Gilon,  37  St.  Rep.  23, 
The  statute  by  §  2140,  Code  Civ.  Proc,  has  extended  the  opera- 
tion of  the  writ  of  certiorari  beyond  what  it  had  at  common  law. 
Not  only  may  the  court  inquire  into  the  jurisdiction  of  the  body 
or  of^ccr  making  the  determination  which  is  the  subject  of 
review,  and  whether  it  has  pursued  the  mode  required  by  law, 
but  also  whether  any  legal  rules  have  been  violated  to  the  preju- 
dice of  the  relator;  and  it  may  examine  the  facts  so  far  as  to 
ascertain  whether  the  determination  was  supported  by  the 
evidence  or  was  against  the  preponderating  weight  of  evidence. 
People  ex  rel.  Cook  v.  Hildrcth,  126  N.  Y.  364,  37  St.  Rep.  393. 

The  decision  of  the  comptroller  in  determining  an  application 
for  the  revision  and  readjustment  of  taxes  stands  in  some 
respects  like  the  verdict  of  tlie  jur}^  and  should  not,  under  Code 


WRIT   OF   CERTIORARI.  405 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

Civ.  Proc,  §  2140,  subdivision  5,  be  set  aside,  except  upon 
reasons  that  would  justify  the  court  in  setting  aside  the  verdict 
as  against  evidence.  People  ex  rel.  A.  C.  &  D.  Co.  v.  Weniple,  60 
Hun,  234,  38  St.  Rep.  23,  14  Supp.  863.  While  the  return  to 
certiorari  zX.  common  law  was  deemed  conclusive  unless  traversed, 
yet  this  rule  does  not  apply  to  certiorari  to  review  assessments, 
and  any  such  proceeding,  notwithstanding  that  the  return  takes 
issue  with  material  allegations  in  the  petition,  or  avers  new 
matter,  the  court  at  the  hearing  may  order  proofs  to  be  taken, 
and  the  testimony  so  taken  and  reported  shall  be  considered 
by  the  court  in  making  its  determination.  People  ex  rel.  S.  B. 
R.  R.  Co.  v.  Cheetham,  20  Abb.  N.  C.  48. 

(See  note  to  this    case    for   collection    of   authorities    on  the 
practice  in  certiorari  to  review  assessments.) 

The  decision  of  the  police  commissioners  in  removing  a  police 
ofificer  is  not  reviewable  on  certiorari  where  the  rules  governing 
the  force  authorize  a  dismissal  from  the  service,  and  the  ques- 
tion of  the  sufficiency  of  the  officer's  excuse  for  dereliction  of 
duty  is  addressed  solely  to  the  discretion  of  the  commissioners. 
Such  a  case  is  not  within  the  provisions  of  §  2140,  subdivision  5. 
People  ex  rel.  Masterson  v.  French,  1 10  N.  Y.  498.  But  the  court, 
in  reviewing  by  certiorari  the  proceedings  of  police  commission- 
ers in  dismissing  an  officer,  may  inquire  whether  there  was  com- 
petent proof  of  the  charges  made,  and  if  so,  whether  there  was 
such  a  preponderance  of  evidence  against  it  as  would  justify 
setting  aside  the  verdict  of  jury.  People  ex  rel.  Welch  v. 
French,  15  St.  Rep.  109.  In  this  case  it  was  held  that  the  need- 
less use  of  his  club  by  an  officer  in  violation  of  a  rule  prohibiting 
the  use  of  the  same,  except  in  self-defence,  was  sufficient  grounds 
for  dismissal.  In  certiorari  under  the  proceedings  to  review 
assessment,  the  court  will  confirm  the  determination  of  the 
assessors,  unless  on  all  the  evidence  there  is  such  a  prepon- 
derance against  the  facts  found  by  the  assessors  that  the  ver- 
dict of  a  jury  finding  same  would  have  been  set  aside.  People 
ex  rel.  Carter  v.  Williams,  20  Supp.  351,  48  St.  Rep.  208. 
Errors  in  the  reception  or  rejection  of  evidence  by  the  tribunal 
whose  proceedings  are  under  review,  should  be  disregarded  by 
the  court  if  the  tribunal  has  jurisdiction  of  subject-matter  of  the 
investigation,  and  had  conducted  its  proceedings  in  the  mode 
required  by  law,  in  order  to  authorize  it  to  make  the  determina- 


406  WRIT    OF   CERIIORARI. 

Art.  8.     Hearing  and  Questions  to  be  Determined. 

tion,  where  there  is  sufficient  competent  evidence  upon  which 
the  tribunal  would  be  authorized  to  reach  the  determination 
which  it  made.  So  held  in  certicrari  to  review  the  proceedings 
of  the  common  council  of  a  city  in  removing  the  city  attorney. 
People  ex  rel.  Burbey  v.  Coinvwii  Council,  85  Hun,  612,  6"]  St.  Rep. 
3,  33  Supp.  165.  Likewise  it  has  been  held  that  the  decision  of 
State  assessors  in  admitting  evidence  is  not  a  violation  of  sub- 
division 3  of  §  2140,  Code  Civ.  Proc,  as  it  does  not  violate 
"  any  rule  of  law  affecting  the  rights  of  the  relators."  It  seems, 
however,  that  a  refusal  to  receive  evidence  absolutely  essential 
to  the  protection  of  either  of  the  parties  would  constitute  an 
erroneous  ruling  of  law  affecting  the  rights  of  the  parties  within 
the  subdivision  of  this  section.  People  ex  rel.  ScJiabacker  v.  State 
Assessors,  47  Hun,  452,  14  St.  Rep.  309,  limiting  People  ex  rel. 
Supervisors  of  Chenango  County  v.  Board  of  State  Assessors,  22 
Week.  Dig.  453. 

The  court  upon  certiorari  will  review  the  decision  of  the  board 
of  police  commissioners  refusing  to  adjourn  the  trial  of  a  police- 
man, where  the  latter  through  illness  is  unable  to  attend  and 
where  such  refusal  is  an  abuse  of  discretion.  People  ex  rel. 
Devery  v.  Martin,  13  Misc.  22,  67  St.  Rep.  850,  33  Supp.  looo. 
Where  a  determination  of  an  inferior  tribunal  has  been  reversed 
on  certiorari  by  the  court,  on  the  ground  of  being  against  the 
weight  of  evidence,  such  reversal  will  not  be  reviewed  by  the 
Court  of  Appeals.  The  court,  however,  goes  on  to  say,  "  We 
do  not  mean  to  say  that  under  no  circumstances  should  we  revn'ew 
such  determination.  In  cases  involving  a  plain  violation  of 
the  well-known  rule  governing  applications  for  a  new  trial,  on  the 
ground  that  the  verdict  is  against  the  weight  of  evidence,  and 
when  it  could  be  seen  that  there  was  an  abuse  of  the  discretion 
of  the  court  and  possibly  in  some  other  cases  this  court  might 
review  the  decision  of  the  lower  court."  It  is  further  held  in 
this  case  that  §  2140  of  the  Code  of  Civil  Proc.  providing  that 
questions  involving  the  merits  may  be  determined  by  the  court 
upon  a  hearing  does  not  apply  to  a  hearing  on  appeal  to  the 
Court  of  Appeals  and  docs  not  enlarge  the  jurisdiction  of  the 
appellate  court.  The  section  is  confined  in  its  operation  to  the 
tribunal  issuing  the  writ.  People  ex  rel.  McCabe  v.  Board  of  Fire 
Commissioners,  106  N.  Y.  261,  8  St.  Rep.  698. 

Under  subdivision  5  of  >J  2140  the  decision  of  police  commis- 


WRIT   OF   CERTIORARI.  407 

Art.  S.     Hearing  and  Questions  to  be  Determined. 

sioncrs  discharging  an  officer  will  be  reversed  and  annulled,  if 
the  relator  had  no  notice  or  opportunity  to  meet  the  charge  upon 
which  his  dismissal  was  based.  People  ex  rel.  Lee  v.  Doolittle,  44 
Hun,  295.  (The  reviser's  note  to  §  2140,  Code  Civ.  Proc,  states 
that  the  section  was  framed  to  settle  the  law  as  to  the  questions 
to  be  reviewed  under  the  writ  and  that  it  was  intended  to  em- 
body the  rule  as  laid  down  in  the  cases.)  Though  §  2140,  Code 
Civ.  Proc,  applies  only  to  civil  proceedings,  yet  it  has  been  used 
by  the  court  as  a  guide  to  determine  questions  involved  in  crim- 
inal proceedings.  People  ex  rel.  Wright  v.  Court  of  Sessions,  ^^ 
Hun,  57,  9  St.  Rep.  609. 

Where  the  decision  of  the  police  commissioners  discharging 
an  officer  has  been  annulled  because  of  its  refusal  to  admit  testi- 
mony, the  relator  cannot  afterwards  object  to  a  rehearing  before 
the  commissioners,  on  the  ground  that  he  is  tried  the  second 
time  for  the  same  offence.  People  ex  rel.  McCormack  v.McClave^ 
29  St.  Rep.  369.  Where  the  board  of  railroad  commissioners 
issues  a  certificate  of  public  convenience  and  necessity,  under 
§  59  of  the  Railroad  Laws,  it  does  not  violate  any  rule  of  law 
affecting  the  rights  of  a  rival  railroad  applying  at  the  same  time 
for  the  same  certificate.  People  ex  rel.  Depew  R.  Co.  v.  Commis- 
sioners, 4  App.  Div.  266.  Though  the  evidence  upon  which 
police  commissioner?  discharge  a  policeman  for  misconduct  is 
conflicting,  yet  when  there  is  sufficient  evidence  to  show  his 
alleged  offence,  the  order  discharging  him  will  not  be  reversed 
on  certiorari.  People  ex  rel.  Irving  v.  Freuek,  6  Supp.  394.  The 
court  has  power  .to  determine  upon  certiorari  whether  the  action 
in  discharging  an  officer  is  supported  by  a  preponderance  of 
proof.  See  People  ex  rel.  Strauss  v.  Roosevelt,  2  App.  Div.  538  ; 
People  ex  rel.  Brady  v.  French,  ii  St.  Rep.  577.  A  writ  of  cer- 
tiorari should  be  quashed  without  considering  the  merits  for 
failure  to  prosecute  for  six  years.  People  ex  rel.  v.  French,  53 
Hun,  637,  6  Supp.  431.  A  writ  of  certiorari  issued  to  review  the 
rejection  of  a  claim  by  a  town  board  of  auditors  should  be 
quashed  if  issued  after  the  schedules  of  audited  accounts  have 
been  delivered  to  the  supervisor,  as  upon  such  delivery  the  juris- 
diction of  the  auditors  terminates.  People  ex  rel.  v.  Board  of 
Auditors  of  Hannibal,  65  Hun,  414,  20  Supp.  165. 

It  is  not  the  practice  to  quash  the  writ  at  a  hearing  where 
there  is  a  return.     Upon  such  hearing  the  court  should  make  a 


408  WRIT    OF   CERTIORARI. 


Art.  9.     Final  Order  and  its  Effect. 


final  order,  either  annulling,  confirming,  or  modifying  the  deter- 
mination under  review.     People  ex  rel.  W,  S.  R.  R.  Co.  v.  Pitman, 
9  St.  Rep.  469.     The  writ  will  not  be  quashed,  though  the  appli- 
cation therefor  failed   to  state  that   no    previous  application   for 
the  writ  had  been  made.     People  ex  rel.  Brodiev.  Cox,  14  St.  Rep. 
632.      If  a  tribunal,  whose  decision  is  under  review,  had  jurisdiction 
and  proceeded  according  to  law  and  there  is  competent  evidence 
to  sustain  the  determination,  errors  in  the  reception  or  rejection 
of  evidence  will  be  disregarded.     People  ex  rel.  Burby  v.  Common 
Council  of  Anbiirn,  ^    Hun,  601,  67   St.    Rep.   3,33   Supp.   165. 
Objections  not  made  before  the  board,  whose  decision  is  under 
review,  cannot  be  considered    upon   the  hearing.     People  ex  rel. 
Heeker,  Jones,  Jewell  Milling  Co.  v.  Barker,  67  St.  Rep.  755,  33 
Supp.  1019.     A  motion  to  amend   the  writ   by  setting  up  addi- 
tional grounds  cannot  be  made  upon  the  argument  of  the  case. 
People  ex  rel.  Gould  v.  Barker,  14  Misc.  586,  70  St.   Rep.   626,  35 
Supp.  225.     The  legality  of   a   municipal  board   cannot  be  ques- 
tioned on  eertiorari,  since  the  writ   assumes  its  legal  existence. 
People  ex  rel.  v.  Hayden,  7  Misc.  292,  27  Supp.  893.      In  eertiorari 
to  review  the  action  of  police  commissioners  in  removing  an  ofificer, 
matters  presented  by  the  return  as  to  which  the  relator  was    not 
tried  should  be  disregarded.     People  ex  rel.  v.  Hannan,  56  Hun, 
469,  10  Supp.  71,  afBrmed,  125  N.  Y.  691.     Where  a  county  court 
has  afifirmed   the  report    of  commissioners    under  the    Highway 
Law,  chapter  568,  Laws  1890,  which  decision  laid  out  a  highway, 
the   same    cannot    be    reviewed   by   certiorari,   because  the  act 
provides   that   the  decision  of  the  county   court   shall  be   final, 
excepting  that  a  new    hearing  may  be    ordered.     People  ex  rel. 
D.  L.  &  R.  R.  Co.  v.  County  Court,  4  App.  Div.  543. 


ARTICLE  IX. 

Final  Order  and   its  Effect.    §§   2141,  2142,  2144,  2145, 

2143'  3253- 

§  2141.  Final  order  upon  the  hearing. 

The  court,  upon  the  hearing,  may  make  a  final  order,  annulling  or  confirming, 
•wholly  or  partly,  or  modifying,  the  determination  reviewed,  as  to  any  or  all  of  the 
parties. 

§  2142.  Restitution  may  be  awarded. 

Where  the  determination  reviewed  is  annulled  or  modified,  the  court  may  order 


WRIT   OF   CERTIORARI.  409 


Art.   9.     Final  Order  and  its  Effect. 


and  enforce  restitution,  in  like  manner,  with  like  effect  and  subject  to  the  same  con- 
ditions, as  where  a  judgment  is  reversed  upon  appeal. 

§  2144.  Entry  and  enrollment  of   final  order. 

The  final  order  of  the  court  upon  the  certiorari  must  be  entered  in  the  office  of  the 
clerk  where  the  writ  was  returnable.  But  before  it  can  be  enforced,  an  enrollment 
thereof  must  be  filed.  For  that  purpose,  the  clerk  must  attach  together,  and  file  in  his 
office,  the  papers  upon  which  the  cause  was  heard  ;  a  certified  copy  of  the  final  order, 
and  a  certified  copy  of  each  order,  which  in  any  way  involves  the  merits,  or  necessarily 
affects  the  final  order. 

See  §§  1237,  1345,  and  1354. 

§  2145.  Effect  thereof. 

The  filing  of  the  enrollment  in  the  office  of  the  clerk  where  the  final  order  is 
entered,  as  prescribed  in  the  last  section,  is  a  sufficient  authority  for  any  proceeding, 
by  or  before  the  body  which,  or  the  officer  who,  made  the  determination  reviewed, 
which  the  final  order  of  the  court  directs  or  permits.  But  where  the  execution  of  the 
final  order  is  stayed  by  an  appeal  to  the  Court  of  Appeals,  the  proceedings  below  are 
stayed  in  like  manner. 

§  2143.  Costs. 

Costs,  not  exceeding  fifty  dollars  and  disbursements,  may  be  awarded  by  the  final 
order,  in  favor  of  or  against  either  party,  in  the  discretion  of  the  court. 

§  3253.  [Am'd,  1896,  1898.]  Additional  allowance  to  either 
party  in  difficult  cases,  etc. 

In  an  action  brought  to  foreclose  a  mortgage  upon  real  property,  or  for  the  partition 
of  real  property,  or  in  a  difficult  and  extraordinary  case  (where  a  defence  has  been 
interposed  in  an  action),  or,  except  in  the  first  and  second  judicial  districts,  in  a 
special  proceeding  by  certiorari  to  review  an  assessment,  under  chapter  two  hundred 
and  sixty-nine  of  the  laws  of  eighteen  hundred  and  eighty,  and  the  acts  amending  the 
same,  the  court  may  also,  in  its  discretion,  award  to  any  party  a  further  sum,  as 
follows  : 

1.  In  an  action  to  foreclose  a  mortgage  or  for  the  partition  of  real  property,  a  sum 
not  exceeding  two  and  one-half  per  centum  upon  the  sum  due  or  claimed  to  be  due 
upon  the  mortgage  nor  the  aggregate  sum  of  two  hundred  dollars. 

2.  In  any  action  or  special  proceeding  specified  in  this  section,  where  a  defence  has 
been  interposed,  a  sum  not  exceeding  five  per  centum  upon  .the  sum  recovered  or 
claimed,  or  the  value  of  the  subject-matter  involved. 

L.  1896,  ch.  571  ;  L.  1898,  ch.  61.     In  effect  Sept.  i,  1898. 

It  was  held,  previous  to  the  enactment  of  §  2 141,  that  the 
Supreme  Court  could  only  affirm  or  reverse  the  proceedings  of 
court  below  on  certiorari.  Baldxvin  v.  Calkins,  10  Wend.  167  ; 
People  V.  City  of  Brooklyn,  14  Abb.  (N.  S.)  115;  People  v.  Ferris^ 
36  N.  Y.  218.  It  was  thought  by  the  codifiers  that  this  rule,  in 
many  instances,  worked  injustice,  and  the  foregoing  section  was 
prepared  for  the  purpose  of  extending  the  power  of  the  court  on 
certiorari,  so  as  to  correspond  to  the  power  vested  in  the  Court 
of  Appeals  and  the  Supreme  Court  upon  appeals  from  orders  in 
special  proceedings  as  well  as  in   actions.      It  is  further  observed 


4IO  WRIT   OF    CERTIORARI. 


Art.  9.     Final  Order  and  its  Effect. 


that  the  section  is  so  drawn  as  to  confine  the  power  of  modifi- 
cation to  the  determination  appealed  from  and  to  the  parties  be- 
fore the  court.  The  provisions  of  the  Code  of  Civil  Procedure, 
§  2 141,  authorizing  the  court,  upon  a  hearing  on  return  to  a  writ 
of  certiorari,  to  make  a  final  order  annulling  or  confirming, 
wholly  or  partly,  or  modifying  the  determination  reviewed,  does 
not  authorize  the  review  or  modification  of  the  determination  of 
inferior  jurisdictions  in  matters  within  that  jurisdiction  which 
are  confided  to  their  discretion. 

It  is  to  be  read  in  connection  with  §  2140,  which  defines  the 
questions  which  may  be  determined  on  certiorari,  and  simply 
gives  power  to  correct  an  erroneous  determination  instead  of  re- 
versing it  absolutely.  Where,  therefore,  the  General  Term  on 
certiorari  mo6^\'vLQdi  an  order,  and  there  was  no  question  of  juris- 
diction, procedure,  or  evidence,  giving  the  General  Term  jurisdic- 
tion, held,  error.  People  v.  Board  of  Fire  Commissioners,  100 
N.Y.  82. 

Section  2 141  of  Code  Civ.  Proc,  though  it  authorizes  the  court 
upon  the  hearing  to  the  writ  of  certiorari  "  to  make  a  final 
order  annulling  or  confirming  wholly  or  partly  or  modifying  the 
determination  to  be  reviewed,"  does  not,  nevertheless,  authorize 
the  review  or  modification  of  decisions  of  inferior  tribunals  in 
matters  in  which  they  had  discretion  and  which  are  within  their 
jurisdiction.  Thus  where  commissioners  have  discharged  a  fire- 
man after  a  trial,  their  decision  as  to  the  nature  and  extent  of 
the  punishment  within  the  limits  of  the  statute  is  not  reviewable 
by  the  court,  as  the  same  is  within  their  discretion.  People  ex 
rel.  Burns  v.  Piirroy,  46  St.  Rep.  910,  19  Supp.  713  ;  Peopleex  rel. 
Kent  v.  Board  of  Fire  Commissioners,  100  N.  Y.  84;  see,  also. 
People  ex  rel.  Master  son  v.  French,  1 10  N.  Y.  498.  In  proceedings 
upon  certiorari  the  court  can  grant  no  additional  relief,  it  has 
authority  only  to  annul,  confirm,  or  modify  the  determination 
to  be  reviewed.  People  ex  rel.  Forest  Commission  v.  Campbell, 
22  App.  Div.  174.  Where  the  refusal  of  a  town  board  to  audit 
a  claim  at  its  full  amount  violated  a  rule  of  law,  the  court  in 
its  decision  may  amend  the  audit,  and  allow  the  full  amount  of 
the  claim.  People  ex  rel.  Groton  Bridge  Co.  v.  Tozvn  Board  of 
Campbell,  92  Hun,  585,  72  St.  Rep.  82,  36  Supp.  1062.  In 
certiorari  to  review  the  legality  of  an  assessment,  the  court 
has  power  to  correct  the  assessment,  under   the    authority   of 


WRIT   OF   CERTIORARI.  4I  T 


Art.  9.     Final  Order  and  its  Effect. 


§  2 141,  by  striking  out  the  names  of  non-residents  and  leaving 
an  assessment  for  the  full  amount  against  the  relator.  People  ex 
rcl.  Neustadt  v.  Coleman,  42  Hun,  586.  The  court  will  reverse 
and  annul  a  decision  of  police  commissioners  removing  an  officer 
where  it  has  not  been  done  after  a  proper  trial  upon  charges 
preferred  against  him.  So  held  where  the  policeman  had  been 
discharged  upon  an  accusation  which  he  had  not  had  an  oppor- 
tunity to  meet.  People  ex  rel.  Lee  v.  Doolittle,  44  Hun,  295. 
See,  however.  People  ex  rel.  MeCabe  v.  Board  of  Fire  Cojninissioners, 
106  N.  Y.  261,  8  St,  Rep.  698,  holding  that,  where  the  court 
in  which  the  hearing  was  originally  had,  has  determined  the 
questions  and  has  reversed  the  decision  of  an  inferior  tribunal, 
the  Court  of  Appeals  will  not  review  such  decision.  Yet  it 
seems  that  even  in  such  case  where  there  has  been  an  abuse  of 
the  discretion  of  the  court  below  in  its  decision  upon  such  hearing, 
the  Court  of  Appeals  will  review  such  decision.  People  ex  rel. 
McCabew.  Board  of  Fire  Commissioners,  106  N.Y.  264,  8  St.  Rep. 
700.  Where  the  judgment  of  police  commissioners  dismissing  an 
officer  from  the  police  force  in  New  York  City  was  rendered 
upon  conflicting  testimony,  such  judgment  will  not  be  reversed 
unless  there  is  such  a  clear  preponderance  of  proof  against  it,  as 
to  warrant  the  belief  that  it  resulted  from  passion,  prejudice,  or 
mistake.  The  court  said  :  "  The  rules  which  govern  an  appellate 
court  in  reviewing  the  verdict  of  a  jury  apply  here  with  equal 
if  not  greater  force."  People  ex  rel.  Shaefer  v.  Martin,  28  App. 
Div.  74,   50  Supp.  897. 

For  a  case  where  the  dismissal  of  a  policeman  from  the  force 
was  reversed  as  against  the  weight  of  evidence.  People  ex  rel. 
Walker  v.  Roosevelt,  26  App.  Div.  183,  49  Supp.  975.  In  this 
case  the  testimony  was  founded  upon  the  testimony  of  a  rounds- 
man, who  saw  the  relator  drinking  something  from  a  glass  which 
had  been  brought  to  him  while  on  duty  and  who  thereupon  ac- 
cused him  of  intoxication.  The  court  says  :  "  We  thus  have  the 
roundsman  making  this  serious  charge  upon  mere  suspicion,  for 
he  is  forced  to  admit  that  he  could  not  see  the  contents  of  the 
glass."  This  charge  having  fallen  through  upon  the  hearing,  the 
roundsman  preferred  a  second  charge,  that  the  policeman  had 
used  vile  and  insulting  language  to  him  on  the  way  to  the  station- 
house,  which  testimony  was  refuted  by  three  unimpeached  and 
disinterested  witnesses.     Upon   this  latter  charge  conviction  was 


412  WRIT   OF   CERTIORARI. 

Art.  9.     Final  Order  and  its  Effect. 

had.  Held,  that  it  should  be  reversed  as  against  the  weight  of 
evidence.     Rumsey  and  Patterson,  JJ.,  dissenting. 

The  decision  of  the  comptroller  in  deciding  whether  property 
within  his  jurisdiction  is  taxable,  which  is  his  duty  by  statute, 
will  not  be  set  aside  unless  it  is  evident  that  the  valuation  is 
erroneous.  People  ex  rcl.  A.  C.  &  D.  Co.  v.  Wemple,  60  Hun,  234. 
Before  the  court  will  reduce  or  modify  an  assessment  made  by 
the  comptroller  having  jurisdiction  of  the  party  and  subject- 
matter,  it  must  be  made  to  appear  affirmatively  that  the  assess- 
ment is  in  part  or  in  whole  erroneous.  People  ex  rel.  E.  E.  I. 
Co.  V.  Wemple,  61  Hun,  65.  Dissenting  opinion  of  Mayham,  J. 
It  seems  that  upon  certiorari  to  review  assessments  where  the 
board  of  assessment  is,  by  city  charter,  made  exclusive  judge  as 
to  whether  property  has  been  benefited  by  an  improvement,  the 
court  will  not  review  the  determination  of  the  board  upon  such 
a  question,  except  for  errors  of  law.  People  ex  rel.  Davidson 
v.  Gilon,  126  N.  Y.  157. 

It  seems  that  where  a  school  trustee  in  making  an  assessment 
has  jurisdiction  of  the  persons  and  subject-matter  taxed,  the  fact 
that  the  tax  is  erroneous  does  not  invalidate  the  whole  assess- 
ment because  such  error  may  be  corrected  and  modified  under  § 
2141,  Code  Civ.  Yxoz.,  Norris  \.  Jones,  7  Misc.  202  ;  see  same  case 
on  appeal  81  Hun,  313.  An  order  appointing  commissioners 
under  chapter  568,  Laws  1890,  to  certify  as  to  the  necessity  of 
ordering  a  highway,  if  properly  made,  cannot  be  reviewed  upon 
certiorari  under  the  Code  of  Civ.  Proc,  nor  can  their  determina- 
tion be  annulled  wholly  or  partly,  or  modified  under  §  2141, 
because  under  the  statute  the  county  court  may  confirm  or 
vacate  such  report  of  commissioners  and  review  all  the  proceed- 
ings in  laying  out  a  highway,  thus  furnishing  an  adequate  remedy. 
People  ex  rel.  Hanford  v.  Thayer,  88  Hun,  137,  68  St.  Rep.  281. 
Where  a  relator  has  been  unlawfully  discharged  from  a  public 
office  in  anticipation  of  an  event  in  which  his  discharge  might 
have  been  lawful,  the  court  in  reinstating  him  will  not  so  modify 
the  decision  of  the  court  below  as  to  allow  him  only  salary  to 
the  date  upon  which  he  might  have  been  properly  discharged. 
He  is  entitled  to  be  restored  to  the  position.  People  ex  rel. 
Dean  v.  Brookfield,  i  App.  Div.  70.  It  should  be  noted  that 
under  the  statutory  writ  of  certiorari  to  review  assessment  there 
is  in  effect  a  new  trial  of   the  entire  issue,  and  the  court  may 


WRIT   OF   CERTIORARI.  413 

Art.  9.     Final  Order  and  its  Effect. 

decide  all  matters  de  novo.  People  ex  rel.  Manhattan  R.  Co.  v. 
Barker,  152  N.  Y.  431. 

Section  2142  is  practically  an  amplification  of  the  preceding 
section,  and  gives  a  further  statement  that  the  court  upon  an- 
nulling or  modifying  a  decision  may  order  and  enforce  restitution 
in  like  manner  and  with  like  effect,  and  subject  to  the  same  con- 
ditions as  where  a  judgment  is  reversed  upon  appeal.  Compare 
§§  1292  and  1323,  Code  Civ.  Proc,  regulating  final  restitution  when 
a  final  judgment  or  order  is  reversed  or  modified  upon  appeal. 
See  the  case  of  Haebler  v.  Myers,  132  N,  Y.  367,  44  St.  Rep.  405, 
28  Abb.  N.  C.  179,  which  discusses  the  nature  of  restitution. 

These  statutes  as  to  restitution,  it  seems,  were  enacted  in  rec- 
ognition of  the  right  of  restitution  as  it  existed  at  common  law, 
and  furnished  an  additional  means  of  enforcing  that  right.  The 
right  is  not  exclusive  but  cumulative,  and  the  remedy  is  exer- 
cised by  the  entry  of  a  judgment  or  order  in  the  action  in  which 
the  erroneous  judgment  or  order  was  rendered  or  made.  Com- 
pare also  Matter  of  Assignuicnt  of  Wilt se  &  Fromer,  5  Misc.  114. 
Where  there  has  been  an  erroneous  assessment,  and  such  assess- 
ment had  been  paid,  the  whole  determination  need  not  be  re- 
versed but  may  be  modified,  and  restitution  may  be  ordered  under 
§  2142,  Code  Civ.  Proc,  to  those  who  have  so  paid  the  assessment. 
People  ex  rel.  N.  ¥.,  O.  &  IV.  R.  R.  Co.  v.  Chapiii,  42  Hun,  241. 

The  rule  governing  costs  in  certiorari  under  Code  Civil  Pro- 
cedure, §  2143,  has  no  application  to  certiorari  \.o  review  assess- 
ment under  chapter  269,  Laws  1880.  Under  §6  of  said  law  costs 
shall  not  be  awarded  against  assessors  or  other  officers  whose 
proceedings  may  be  reviewed  under  this  act,  unless  it  shall  appear 
to  the  court  that  they  acted  with  gross  negligence,  with  bad 
faith,  or  with  malice.  People  ex  rel.  Niagara  Falls  Co.  v.  Russell, 
57  Hun,  55,  10  Supp.  392,  32  St.  Rep.  21;  see  People  ex  rel. 
Scrafford  V.  Stedman,  57  Hun,  281,  10  Supp.  789,  32  St.  Rep.  652, 
for  costs  awarded  in  the  discretion  of  the  court  under  §  2143, 
Code  Civ.  Proc,  on  certiorari  directed  to  commissioners  of  high- 
ways, to  review  an  order  laying  out  a  road. 

The  provisions  of  §  2143,  Code  Civ.  Proc,  do  not  apply  to 
certiorari  to  review  assessment.  The  costs  allowed  on  certiorari 
to  review  assessment  are  those  allowed  in  an  ordinary  action. 
People  ex  rel.  Fairchild  Co.  v.  Colemaii,  18  Abb.  N.  C.  247.  See 
Peo.  ex  rel.  Lee  v.  Doolittle,  44  Hun,  295,  for  discretionary  costs 


414  WRIT    OF    CERTIORARI. 

Art.  9.     Final  Order  and  its  Effect. 

given  under  §  2143  in  certiorari  where  the  decision  of  police 
commissioners  discharging  an  officer  are  wholly  reversed  and 
annulled. 

No  costs  were  allowed  on  a  writ  of  certiorari  at  common  law. 
The  subject  is  discussed  and  reasons  given  and  explained.  People 
V.  Metropolitan  Police  Board,  39  N.  Y.  506.  There  was  much  con- 
flict over  this  question  under  the  Code  of  Procedure,  and  the  ques- 
tion seems  to  have  been  decided  in  favor  of  the  allowance  of  costs 
as  a  special  proceeding.  People  v.  Fuller,  40  How.  35.  The  de- 
cisions under  the  present  statutes  have  been  under  the  provisions 
of  chap.  269,  Laws  of  1880,  providing  for  the  review  of  assess- 
ments by  certiorari,  and  will  be  more  fully  referred  to  under 
that  head.  They  are  People  v.  Keator,  6j  How.  277  ;  People  v. 
Peterson,  16  Week.  Dig,  70  ;  People  v.  Keator,  36  Hun,  592  ;  People 
V.  Fo7id a,  22  VJQck,  Dig.  477.  Where  the  judgment  of  a  court- 
martial  is  brought  into  the  Supreme  Court  on  a  writ  of  certiorari, 
and  there  reversed,  the  respondent  is  personally  liable  for  costs 
awarded  by  the  final  order  and  may  be  adjudged  guilty  of  con- 
tempt for  non-payment.     See  §  2007  ;  Matter  of  Lear y,   30  Hun, 

394- 

Under  §§  2 144-2145,  no  formal  judgment  seems  necessary, 
beyond  the  final  order ;  under  the  former  practice  a  very  elab- 
orate judgment  was  entered. 

If  judgment  is  desired  it  may  be  entered  in  the  usual  form  of 
judgment  of  affirmance,  or  dismissing  writ,  as  the  case  may  be. 

Precedent  for  Order  Dismissing  Writ. 

At  a  General  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  in  and  for  the  third  judicial  department  of  said  State,  at  the 
court-house  in  the  city  of  Albany,  on  the  31st  day  of  May,  1884: 

Present : — Hon.  Wm.  L.  Learned,  Presiding  Justice  ;  Hons.  Augustus 
Bockes  and  Douglass  Boardman,  Associate  Justices, 


The  People  of  the  State  of  New  York,  on  the 
Relation  of  Louis  Bevier,  Supervisor  of  the 
Town  of  Marbletown,  and  the  Town  of 
Marbletown 

agst. 

The   Hoard   of  Supervisors  of    the   County  of 
Ulster. 


This  matter,  coming  on  to  be  heard  on  the  petition,  writ  of  certiorari 


WRIT   OF   CERTIORARI.  415 


Art.  9.     Final  Order  and  its  EflFect. 


and  return  thereto,  and  after  hearing  J.  J.  Linson,  Esq.,  counsel  for  the 
relators,  and  E.  B.  Walker,  Esq.,  counsel  for  the  respondent, 

Ordered,  that  the  writ  of  certiorari  herein  granted  and  tested  on  the 
7th  day  of  December,  1883,  and  the  proceedings  thereon,  be  and  the 
same  hereby  is  dismissed,  with  fifty  dollars  costs  and  disbursements  to 
the  respondent.  JOHN  W.   WALSH, 

Deputy  Clerk. 

Judgment  on  Order  Dismissing  Writ. 

(Title.) 

This  matter,  coming  on  to  be  heard  on  the  petition,  writ  of  certiorari 
and  return  thereto,  and  after  hearing  J.  J.  Linson,  Esq.,  counsel  for  re- 
lators, and  E.  B.  Walker,  Esq.,  counsel  for  respondent. 

It  is  ordered  and  adjudged  that  the  writ  of  certiorari  herein  granted 
and  tested  on  the  7th  day  of  December,  1883,  and  all  proceedings 
thereon,  be  and  the  same  hereby  is  dismissed. 

It  is  further  ordered  and  adjudged  that  the  board  of  supervisors  of 
the  county  of  Ulster,  the  respondent  herein,  recover  of  the  town  of 
Marbletown  and  Louis  Bevier,  supervisor  of  said  town  of  Marbletown, 
the  sum  of  fifty  dollars  costs,  and  fourteen  and  25-100  dollars  disburse- 
ments, making  in  all  the  sum  of  sixty-four  and  25-100  dollars. 

MARTIN  S.  DECKER, 

Deputy  Clerk. 

An  evasion  of  an  order  granted  on  certiorari  compelling  a 
commissioner  of  correction  of  the  city  and  county  of  New  York 
to  reinstate  the  relator  to  his  office  of  warden  in  the  prison,  is  a 
contempt,  and  an  order  committing  such  commissioner  for  con- 
tempt is  proper.  In  this  case  the  relator  succeeded  in  his  ap- 
plication for  a  reinstatement,  and  the  order  on  certiorari  required 
the  commissioner  "  to  restore  him  the  possession  of  the  State  office 
or  position,  and  the  rights,  powers,  privileges,  and  emoluments 
thereof."  The  commissioner  made  an  order  stating  that  two 
wardens  were  necessary,  and  continued  another  appointee  to 
serve  during  the  day,  the  period  during  which  the  duties  of  a 
warden  were  performed,  and  reinstated  the  relator  as  a  warden  to 
serve  only  at  night  which  merely  constituted  him  a  night  watch- 
man. It  was  held  that  such  action  by  the  commissioner  was 
merely  a  shallow  pretext  for  disobeying  the  order  of  the  court 
and  was  punishable  as  a  contempt.  People  ex  rel.  Fallon  v. 
Wright,  22  App.  Div.  167. 


4l6  WRIT   OF   CERTIORARI. 


Art.   lo.     Restriction  on  the  Right  to  the  Writ. 


ARTICLE  X. 

Restriction   on  the  Right  to  the  Writ.     §§  2 147-2 148. 
§  2147.  Application  of  this  article  to  certain  special  cases. 

Where  the  right  to  a  writ  of  certiorari  is  expressly  conferred,  or  the  issuing  thereof 
is  expressly  authorized,  by  a  statute,  passed  before,  and  remaining  in  force  after  this 
article  takes  effect,  this  article  does  not  vary,  or  affect  in  any  manner,  any  provision 
of  the  former  statute,  which  expressly  prescribes  a  different  regulation,  with  respect 
to  any  of  the  proceedings  upon  the  certiorari  to  be  issued  thereunder. 

§  2148.  Id. ;  to  civil  cases  only. 

This  article  is  not  applicable  to  a  writ  of  certiorari,  brought  to  review  a  determina- 
tion made  in  any  criminal  matter,  except  a  criminal  contempt  of  court. 

As  proceedings  for  criminal  contempt  are  not  provided  for  in 
the  Criminal  Code,  it  has  been  held  that,  by  virtue  of  §  2148, 
Code  Civ.  Proc,  an  order  punishing  one  for  criminal  contempt 
may  be  reviewed  by  certiorari,  and  such  has  always  been  the 
practice.  People  ex.  re  I.  Taylor  v.  Forbes,  143  N.  Y.  223,  (i2  St. 
Rep.  175,  38  N.  E.  Rep.  303;  see,  also.  People  ex  rel.  Munsell 
V.  Court  of  Oyer  &  Terminer,  loi  N.  Y.  245  ;  People  ex  rel. 
Choate  V.  Barrett,  56  Hun,  351,  121  N.  Y.  678;  People  ex  rel. 
Negus  V.  Divyer,  90  id.  402.     (See  title  Criminal  Contempt.) 

Following  the  decision  of  People  ex  rel.  Taylor  v.  Forbes,  143 
N.  Y.  223,  62  St.  Rep.  175,  38  N.  E.  Repr.  303,  snpra,  the  Gen- 
eral Term  held  that  the  determination  of  the  court  punishing  a 
person  for  criminal  contempt,  may  be  reviewed  by  certiorari; 
notwithstanding  §  515  of  the  Code  Criminal  Procedure,  which 
provides  that :  "  Writs  of  error  and  of  certiorari  in  criminal 
actions  and  proceedings  and  special  proceedings  of  a  criminal 
nature  .  .  .  are  abolished,  and  hereafter  the  only  mode  of  reviewing 
a  judgment  or  order  in  a  criminal  action  or  proceeding  or  special 
proceedings  of  criminal  nature  is  by  appeal."  People  ex  rel. 
Barnes  v.  Court  of  Sessions,  82  Hun,  258,  63  St.  Rep.  821,  31 
Supp.  373  ;  see  147  N.  Y.  290.  Though  the  provisions  of  the 
Code  of  Civ.  Proc.  on  certiorari  to  review  apply  only  to  civil 
proceedings,  yet  §  2140  of  the  Code  Civ.  Proc,  which  regulates 
the  questions  to  be  determined  upon  a  hearing  of  certiorari,  has 
been  used  by  the  court  as  a  guide  in  criminal  proceedings. 
People  ex  rel.  Wright  v.  Court  of  Sessions,  45  Hun,  57,  9  St. 
Rep.  609. 

It  should  be  remembered  that  certiorari  to  review  assessment, 
as  provided  by  the  Tax  Law,  is  a  different  and  separate  proceeding 
from  certiorari  to  review  under  the  Code,  and   the   Code  provi- 


WRIT   OF   CERTIORARI.  4^7 


Art.    II.     Appeals. 


sions  do  not  apply.  People  ex  rcl.  N.  V.,  etc.,  R.  R.  Co.  v.  Low, 
40  Hun,  177 ;  People  ex  rel.  Manhattan  R.  Co.  v.  Barker,  152  N. 
Y.  430. 

ARTICLE   XI. 

Appeals. 

An  order  of  the  appellate  division  simply  dismissing  a  com- 
mon-law writ  of  certiorari  without  affirming  the  proceedings,  or 
in  any  way  passing  upon  the  questions  sought  to  be  reviewed,  is  a 
discretionary  order,  and  is  not  reviewable  by  the  Court  of  Appeals. 
The  discretionary  character  of  an  order  dismissing  such  writ 
cannot  be  altered  by  recourse  to  the  opinion  of  the  court  below. 
People  ex  rel.  Coler  v.  Lord,  157  N.  Y.  408,  dismissing  appeal  from 
29  App.  Div.  455. 

Where  an  objection  on  the  ground  of  non-joinder  of  defend- 
ants is  taken  for  the  first  time  on  an  appeal  from  an  order  dis- 
missing a  certiorari  on  other  grounds,  the  appellate  court  may 
permit  an  application  to  be  made  to  the  Special  Term  to  vacate 
the  order  and  allow  an  amendment  to  the  writ.  Peo.  ex  rel. 
Benedict  v.  Roe,  25  App.  Div.  107,  49  Supp.  227,  83  St.  Rep.  227. 
An  appeal  from  a  decision  on  a  writ  of  certiorari  to  review 
assessment,  under  chapter  269,  Laws  of  1880,  is  limited  impera- 
tively by  that  law,  and  not  by  the  Code  of  Procedure.  People  v. 
Keator,  loi  N.  Y.  610.  When  the  writ  is  quashed  below,  under 
the  well-settled  practice  of  the  Court  of  Appeals,  the  appeal  to 
that  court  must  be  dismissed.  This  is  upon  the  ground  that  the 
granting  or  withholding  of  the  writ  is  discretionary  with  the  Su- 
preme Court.  People  v.  Board  of  Police  Commissioners,  82  N.  Y. 
506,  citing  hi  re  Mount  Morris  Square,  2  Hill,  14  ;  People  v.  Stilwell, 
19  N.  Y.  531  ;  People  v.  Hill,  53  id.  549;  People  v.  Board  of  Fire 
Commissioners;  "jj  id.  605,  and  distinguishing  People  v.  Board  of 
Assessors,  39  id.  81,  which  seems  to  hold  a  different  rule  ;  People  v. 
Commissioners,  etc.,  103  N.  Y.  370,  cases  cited  in  points  of  attor- 
ney-general. People  V.  McCarthy,  102  N.  Y.  630.  The  court  says, 
in  People  v.  Haneman,  85  N.  Y.  655,  we  have  many  times  decided 
that  an  appeal  to  this  court  is  not  allowed  from  a  decision  of  the 
Supreme  Court  quashing  a  writ  of  certiorari.  If,  in  this  case, 
judgment  had  been  granted  affirming  the  action  of  the  commis- 
sioners of  taxes  an  appeal  would  lie.  There  thus  appears  to  be 
a  distinction  as  to  the  form  of  the  order  of  the  General  Term, 
27 


4l8  WRIT    OF    CERTIORARI. 


Art.    II.     Appeals. 


and  in  case  an  appeal  is  desired,  the  order  should  be  one  of 
affirmance  of  the  action  of  the  inferior  tribunal  and  not  quashing 
the  writ. 

It  is  again  held  in  People  v.  Board  of  Police  Commissioners,  86 
N.  Y.  639,  that  an  order  quashing  a  writ  of  certiorari  is  not  re- 
viewable in  that  court.  It  is  held,  in  People  v.  Fire  Commissioners, 
82  N.  Y.  360,  that  on  a  comnion-law  certiorari  the  court  will 
examine  the  record,  not  only  for  the  purpose  of  seeing  whether 
the  subordinate  tribunal  kept  within  its  jurisdiction,  but  also  to 
ascertain  whether  there  was  any  legal  proof  of  facts  authorizing 
the  adjudication,  and  whether  any  rule  of  law  affecting  the 
relator  has  been  violated  (citing  People  v.  Board  of  Commissioners, 
69  N.  Y.  408)  ;  and  further,  that  if  the  tribunal  had  jurisdiction, 
and  there  was  evidence  legitimately  tending  to  support  its  deci- 
sion, and  no  rule  of  law  was  violated,  the  adjudication  is  final 
and  cannot  be  reviewed  upon  certiorari,  because  the  evidence 
upon  which  it  proceeded  was  weak  or  inconclusive,  or  because 
the  court  issuing  the  writ  would,  if  the  case  had  originally  been 
presented  for  its  decision,  have  decided  differently  upon  the  facts. 
The  question  of  what  is  reviewable  in  the  Court  of  Appeals,  on 
appeal  from  a  common-law  certiorari,  was  fully  discussed  in 
People  V.  French,  92  N.  Y.  306,  and  it  was  held  that  the  court 
would  look  into  the  record  only  for  the  purpose  of  seeing 
whether  the  subordinate  tribunal  has  kept  within  its  jurisdiction, 
based  its  decision  upon  some  legal  proof  of  the  facts  authorizing 
it,  and  violated  no  rule  of  law  in  its  proceedings  affecting  the 
right  of  relator.  It  is  further  held  that  §  2140  does  not  require 
such  a  review  as  would  require  the  examination  of  evidence ; 
that  the  section  refers  to  the  court  hearing  the  proceedings  on 
the  return  of  the  writ,  and  must  necessarily  be  confined  to  the 
court  in  which  such  hearing  is  had.  In  People  v.  Board  of  Police 
Commissioners,  93  N.  Y.  loi,  it  is  assumed  that  the  rule  is  that 
the  facts  involved  in  the  determination  must  be  satisfactorily 
supported  by  evidence,  so  that  the  verdict  of  a  jury  finding  such 
fact  would  not  be  set  aside  as  against  the  weight  of  evidence, 
yet  only  error  of  law  can  be  reviewed  in  that  court,  and  the 
evidence  examined  to  see  that  there  is  competent  proof  to  jus- 
tify the  decision  made.  But  where  an  order  is  made  denying 
a  motion  to  quash  the  writ  issued  in  a  case  not  reviewable  by 
certiorari,  an  appeal  may  be  taken  to  the  Court  of  Appeals,  dis- 


WRIT   OF   CERTIORARI.  4^9 


Art.   II.    Appeals. 


tinguishing/^«t^.y  v.  People,  79  N.  Y.  45,  which  holds  that  where 
a  certiorari  has  been  lawfully  issued,  it   is  a  matter  of  discretion 
whether   the   Supreme  Court   will   quash ;   but  if   unlawfully  or 
illegally  issued,  the  appellate  court  may  pass  upon,  and  might, 
of  its  own  motion,  quash  the  writ.     People  v.  Board  of  Commis- 
sioners, 97   N.  Y.   37.     In  People  v.  McCarthy,  102   id.  635,  it  is 
held  that  since  §  2127  makes  the  allowance  of  the  writ  of  certio- 
rari discretionary  with  the  court,  an  order   quashing   the  writ  is 
not  appealable  to  the  Court  of  Appeals.     That    if   the  court    in 
making  the   order  had   refrained   from   exercising  its  discretion 
upon  the  question  presented,  and  had  quashed  the  writ  upon  the 
ground  of  a  want  of  power  to  issue   it,  or  had   quashed  it    in   a 
case  not  authorized  by   law,  the   court   could   properly   have   re- 
viewed the  questions  presented  by  an   appeal  from  such  deter- 
mination (citing  97  N.  Y.  37,  supra)  :   "  But  in  a  case  where  that 
court  has  exercised  its  discretion  with  respect   to  the  allowance 
or  denial  of  the  writ,  and  has  refused  to  grant   it   on  the  ground 
that  it  ought  not,  under  all   the   circumstances   of  the   case,  to 
have  been  issued,  this   court   has   no   jurisdiction   to   review   its 
determination,  and  so  it  has  repeatedly  held."     Citing   19  N.  Y. 
53i»  53  id.  547,  85  id.  655.     But  in   a  case   where,   although   the 
order  concluded   by  directing   that    the  writ    be    quashed,  that 
conclusion  was  preceded  by  an  adjudication,  that  the  proceeding 
brought  up  by  the  writ  was  valid  and  free   from   error,  and   the 
judgment  quashing  the  writ  was  not  rendered  in  the  exercise  of 
the  discretion  of  the  court,  and  on  the  grounds  that  the  proceed- 
ing ought  not  to  be  reviewed  by  the   writ,  it  presents  questions 
of  law  reviewable  in  Court  of  Appeals.     People  v.  Commissioners, 
103  N.  Y.  370.     As   the   law   now  stands,  under  the   Code   the 
Supreme  Court  is  at  liberty  to  review  the  evidence,  and  to  review 
the  decision  whenever  it  would  feel  justified  in   setting  aside  a 
verdict  upon  the  same  evidence  as  against  the  weight  of  evidence. 
People  V.  Board  of  Fire  Commissioners,  30  Hun,  376.     In  review- 
ing the  decision  of  the  canal  board  on  certiorari  from   the  canal 
appraisers,  the  court  can  only  inquire  whether  these  bodies  have 
kept  within  their  jurisdiction  ;  it  cannot  consider  the   merits  or 
any    alleged    irregularities    not    jurisdictional.     People   v.    Canal 
Board,  29  Hun,  159.     And  the  writ  will  not   issue  to  review  pro- 
ceedings of  the  canal  board  while  an   appeal  is  pending.     People 
V.  Dennison,  28  Hun,  328. 


CHAPTER  IX. 

DISCHARGE  OF  INSOLVEN  r  DEBTOR   FROM   HIS    DEBTS. 

(two-thirds  act.) 

PAGE. 

Article  i.     Who  maybe  discharged  and  by  what  court,     §§  2149, 

2150 421 

2.  The    petition     and    accompanying  papers.     §§    2151 

to  2 1 63 422 

3.  Order    to     show    cause,    and     proceedings    thereon. 

§§   2164   to  2172 439 

4.  When  insolvent  discharged  and  proceedings  thereon. 

§§  2i73to  2180 448 

5.  Discharge  and  its  effects.     §§  2181  to  2187 457 

Sections  of  the  Code  and  Where  Found  in  This  Chapter. 

SEC.                                                                                                                                                                                                                           ART.  PAGE. 

2149.  Who  may  be  discharged i  421 

21 50.  To  what  court  application  to  Ije  made i  421 

21 51.  Contents  of  petition 2  422 

2152.  Consent  of  creditors  to  be  annexed 2  423 

2 1 53.  Consent  of  executor,  administrator,  receiver,  etc 2  423 

2 1 54.  Id. ;  of  corporation,  etc 2  423 

2155.  Id.;  of  partnership 2  423 

2156.  Effect  of  consent  where  petitioner  is  a  joint  debtor 2  423 

2 1 57.  Consent  of  purchaser  of  debt,  etc 2  423 

2158.  Consenting  creditor  must  relinquish  security 2  424 

2 1 59.  Penalty  if  creditor  swears  falsely 2  424 

2160.  Affidavit  of  consenting  creditor 2  424 

2161.  When  non-resident  creditor  to  annex  account,  etc 2  424 

2162.  Petitioner's  schedule 2  425 

2163.  His  affidavit 2  425 

2164.  Order  to  show  cause 3  439 

2165.  How  order  published  and  served 3  439 

2166.  Hearing 3  44° 

2167.  Putting  causa  on  calendar 3  44° 

2168.  Opposing  creditor  to  file  specifications,  and  may  demand  jury  trial. .     3  440 

2169.  Id. ;  to  file  proofs,  if  not  named  in  schedule 3  44° 

2 1 70.  Proceedings  if  jurors  do  not  agree 3  44° 

2171.  When  insolvent  required  to  produce  his  non-resident  wife 3  440 

2172.  Examination  of  an  insolvent 3  44' 

2173.  When  insolvent  cannot  be  discharged 4  448 

2174.  When  assignment  to  be  directed 4  44^ 

2175.  Assignment ;  contents,  and  to  whom  made 4  448 

2176.  Id. ;  trustees,  how  designated 4  449 

2177.  Effect  of  assignment 4  449 

420 


DISCHARGE    OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.    42 1 


Art.   I.     Who  Maj'  be  Discharged  and  by  What  Court. 


SEC. 


ART.      PAGE. 


2178.  When  discharge  to  be  granted 4  449 

2179  2180.  Proceedings  where  trustee  refuses  to  give  certificate,  etc 4  449 

2181 .  Discharge,  etc.,  to  be  recorded 5  457 

2182.  Effect  of  discharge 5  45^ 

2183.  Id. ;  exceptions  as  to  foreign  contracts  or  creditors 5  45^ 

2184.  Id. ;  as  to  debts,  etc.,  to  the  United  States  and  the  State 5  45^ 

2185.  Insolvent  to  be  released  from  imprisonment 5  459 

2186.  Discharge ;  when  void 5  459 

2187.  Invalidity  may  be  proved  on  motion  to  vacate  order  of  arrest 5  459 

ARTICLE    I. 
Who  May  be  Discharged  and  by  What  Court. 

§  2149.  Who  may  be  discharged. 

An  insolvent  debtor,  who  is  a  resident  of  the  State  at  the  time  of  presenting  his  pe- 
tition, may  be  discharged  from  his  debts,  as  prescribed  in  this  article. 
2  R.  S.  16,  §  I  (2  Edm.  17),  amended. 

§  2150.     [Am'd,  1895.]    To  what  court  application  to  be  made. 

Application  for  such  a  discharge  must  be  made  by  the  petition  of  the  insolvent,  ad- 
dressed to  the  county  court  of  the  county  in  which  he  resides ;  or,  if  he  resides  in  the 
city  of  New  York,  to  the  Supreme  Court. 

The  act  for  relief  of  debtors  on  proceedings  similar  to  those 
herein  provided  for  was  originally  known  as  the  Three-Fourths 
Act,  and  was  modified  and  subsequently  enacted  by  the  Revised 
Statutes  so  as  to  require  the  consent  of  two-thirds  instead  of 
three-fourths  of  the  creditors.  The  history  of  the  legislation  on 
the  subject  in  the  State  is  given  in  detail  in  an  elaborate  opinion 
in  American  Flask  Co.  v.  Son,  7  Robt.  233,  and  the  decisions  on 
the  subject  collated,  compared,  and  discussed.  The  act  will  be 
construed  strictly,  and  all  proceedings  under  it  must  fully  com- 
ply with  its  provisions,  since  it  is  in  derogation  of  the  common 
law,  and  such  strict  compliance  with  the  statute  is  a  condition 
precedent  to  the  discharge  of  an  insolvent  from  his  debts.  Nor, 
in  view  of  the  fact  that  it  is  designed  to  deprive  creditors  of  all 
remedy  for  the  collection  of  their  debts,  will  it  be  extended  by 
implication  beyond  the  fair  and  legitimate  meaning  of  the  terms 
employed  by  the  legislature.  Saltcrsv.  Tobias,  t,  Paige,  339; 
People  V.  Striker,  24  Barb.  649;  People  v.  Sutherland,  16  Hun, 
192;  Merry  V.  Sweet,  43  Barb.  475;  Stanton  v.  Ellis,  12  N.  Y. 
575;  Morrow  w.  Freeman,  6\  id.  515.  The  question  of  what  is 
sufificient  evidence  under  the  Revised  Statutes  to  enable  an  in- 
solvent to  come  within  the  statute  was  discussed  in  Matter  of 


422    DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS    DEBTS. 

Art.   2.     The  Petition  and  Accompanying  Papers. 

Wriglej,  4  Wend.  602,  affirmed,  8  id.  134,  where  it  was  held  that 
it  must  be  a  bo7ia  fide  residence  with  intent  to  remain  a  resi- 
dent of  the  State.  The  matter  of  residence  is  jurisdictional. 
Otis  V.  Hitchcock,  6  Wend  433  ;  Morezvood  v.  Hollistcr,  6  N.  Y. 
309,  An  unliquidated  claim  for  damages  arising  out  of  a  tor- 
tious act  is  not  a  debt  within  the  provisions  of  the  statute  author- 
izing a  discharge  of  an  insolv^ent.  Zinn  v.  Rittcrinan,  2  Abb. 
(N.  S.)  261.  If  an  application  has  already  been  made  to  the 
Common  Pleas,  and  after  a  full  hearing  has  been  decided  against 
the  debtor  on  the  merits,  it  should  be  regarded  as  res  adjudicata, 
and  the  application  denied.  Matter  of  Roberts,  10  Hun,  253, 
reversed  on  another  point,  70  N.  Y.  5. 

Under  §  2149,  requiring  that  the  insolvent  debtor  must  be  a 
resident  of  the  State  at  the  time  of  presenting  his  petition,  the 
term  "resident"  means  domiciled,  either  for  the  purpose  of  liv- 
ing or  business,  and  one  who  having  an  actual  domicil  in  New 
Jersey,  but  spending  part  of  the  year  at  a  club-house,  owned  by 
him  with  others,  in  the  Catskill  Mountains,  is  not  a  resident 
within  the  meaning  of  this  section.  Matter  of  Dijmnock,  4 
App.  Div.  305,  and  the  court  is  not  precluded  in  its  decision 
as  to  the  petitioner's  domicil  by  his  testimony.  Matter  of 
Dinimock,  reported  below,  ii  Misc.  613,  66  St.  Rep.  354,  24 
Civ.  Proc.  313. 

The  jurisdiction  of  the  court  to  entertain  proceedings  for  an 
insolvent's  discharge  from  his  debts  is  a  special  jurisdiction,  and 
depends  upon  a  strict  compliance  with  the  statute.  If  there  ap- 
pear upon  the  face  of  the  papers  the  lack  of  any  of  the  statutory 
requirements,  the  court  is  without  jurisdiction,  and  a  discharge 
based  thereon  is  void.  Matter  of  Cohen,  \6  Daly,  70,  9  Supple- 
ment, 498,  18  Civ.  Proc.  157;  compare  Bullynwrc  v.  Coo/'er,  46 
N.  Y.  236. 

ARTICLE  II. 

The  Petition  and  Accompanying  Papers. 
^§  2151    to   2163, 

§  2151.  Contents  of  petition. 

The  petition  must  be  in  writing ;  it  must  be  signed  by  the  insolvent,  and  specify  his 
residence  ;  it  must  set  forth,  in  substance,  that  he  is  unable  to  pay  all  his  debts  in  full ; 
that  he  is  willing  to  assign  his  property  for  the  benefit  of  all  his  creditors,  and,  in  all 
other  respects,  to  comply  with  the  provisions  of  this  article,  for  the  purpose  of  being 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM   HIS   DEBTS.   423 

Art.   2.     The  Petition  and  Accompanying  Papers. 

discharged  from  his  debts  ;  and  it  must  pray  that,  upon  his  so  doing,  he  may  be  dis- 
charged accordingly.  It  must  be  verified  by  the  affidavit  of  the  insolvent,  annexed 
thereto,  taken  on  the  day  of  the  presentation  thereof,  to  the  effect,  that  the  petition  is 
in  all  respects  true,  in  matter  of  fact. 

§  2152.  Consent  of  creditors  to  be  annexed. 

The  petitioner  must  annex  to  his  petition  one  or  more  written  instruments,  executed 
by  one  or  more  of  his  creditors,  residing  in  the  United  States,  having  debts  owing  to 
him  or  them  in  good  faith,  then  due  or  thereafter  to  become  due,  which  amount  to 
not  less  than  two-thirds  of  all  the  debts,  owing  by  the  petitioner  to  creditors  residing 
within  the  United  States.  Each  instrument  must  be  to  the  effect,  that  the  person  or 
corporation,  executing  it,  consents  to  the  discharge  of  the  petitioner  from  his  debts, 
upon  his  complying  with  the  provisions  of  this  article. 

2  R.  S.  36,  §  2  (2  Edm.  37). 

§  2153.  Consent  of  executor,  administrator,  receiver,  etc. 

An  executor  or  administrator  may  become  a  consenting  creditor,  under  the  order 
of  the  surrogate's  court  from  which  his  letters  issued.  A  trustee,  official  assignee,  or 
receiver  of  the  property  of  a  creditor  of  the  petitioner,  whether  created  by  operation 
of  law  or  by  the  act  of  parties,  may  become  a  consenting  creditor  under  the  order  of 
a  justice  of  the  Supreme  Court.  A  person  who  becomes  a  consenting  creditor,  as  pre- 
scribed in  this  section,  is  chargeable  only  for  the  sum  which  he  actually  receives,  as  a 
dividend  of  the  insolvent's  property. 

2  R.  S.  36,  §  3,  and  L.  1850,  ch.  210,  §  i  (4  Edm.  482),  am'd  and  consolidated. 

§  2154.  Id. ;  of  corporation,  etc. 

Where  a  corporation  or  joint-stock  association  becomes  a  consenting  creditor,  its 
consent  must  be  executed  under  its  common  seal,  and  may  be  attested  by  any  director 
or  other  officer  thereof,  duly  authorized  for  that  purpose,  who  may  make  any  affidavit 
required  of  a  creditor  in  the  proceedings. 

Id.  §  7  (2  Edm.  37),  am'd. 

§  2155.  Id. ;  of  partnership. 

Where  a  partnership  becomes  a  consenting  creditor,  the  consent  may  be  executed 
in  its  behalf,  and  any  affidavit,  required  of  a  creditor  in  the  proceedings,  may  be  made, 
by  either  of  the  partners. 

Id.  §  8,  am'd. 

§  2156.  EfiTect  of  consent  where  petitioner  is  a  joint  debtor. 

A  creditor's  consent  does  not  affect  his  remedy  against  any  person  or  persons  in- 
debted jointly  with  the  petitioner ;  and  the  petitioner's  discharge  has  the  effect,  as 
between  the  creditor  and  the  other  joint  debtors,  of  a  composition  between  the  peti- 
tioner and  the  creditor,  made  as  prescribed  in  article  third  of  title  fifth  of  chapter 
fifteenth  of  this  act. 

L.  1849,  ch.  176  (4  Edm.  451),  am'd.     See  §§   1942  and   1944;  also  L.   1838,  ch. 

257,  §  3- 
§  2157.  Consent  of  purchaser  of  debt,  etc. 

Where  a  consenting  creditor  is  the  purchaser  or  assignee  of  a  debt  against  the 
petitioner,  or  the  executor,  administrator,  trustee,  or  receiver  of  such  a  purchaser  or 
assignee,  he  is  deemed,  for  all  the  purposes  of  this  article,  except  as  to  the  declaration 
and  receipt  of  dividends,  a  creditor  only  to  the  amount,  actually  and  in  good  faith  paid 
for  the  debt,  by  him,  or  by  the  decedent  or  other  person,  from  whom  he  derives  title, 
and  remaining  uncollected.     This  section  is  not  affected  by  the  recovery  of  a  judgment 


424   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.   2.     The  Petition  and  Accompanying  Papers. 


for  the  debt,  after  the  purchase  or  assignment ;  but  in  that  case,  the  consenting  creditor 
may  include  the  uncollected  costs,  as  if  they  were  part  of  the  sum  paid  for  the  debt. 
2  R.  S.  36,  §  10,  am'd. 

g  2158.  Gonsanting  creditor  must  relinquish  security. 

A  creditor  who  has,  in  his  own  name,  or  in  trust  for  him,  a  mortgage,  judgment,  or 
other  security,  for  the  payment  of  a  sum  of  money,  which  is  a  lien  upon,  or  otherwise 
affects,  real  or  personal  property  belonging  to  the  petitioner,  or  transferred  by  him 
since  the  lien  was  created,  cannot  become  a  consenting  creditor,  with  respect  to  the 
debt  so  secured,  unless  he  adds  to  or  includes  in  his  consent,  a  written  declaration, 
under  his  hand,  to  the  effect,  that  he  relinquishes  the  mortgage,  judgment,  or  other 
security,  so  far  as  it  affects  that  property,  to  the  trustee  to  be  appointed  pursuant  to 
the  petition,  for  the  benefit  of  all  the  creditors.  Such  a  declaration  operates,  to  that 
extent,  as  an  assignment  to  the  trustee,  of  the  mortgage,  judgment,  or  other  security; 
and  vests  in  him  accordingly  all  the  right  and  interest  of  the  consenting  creditor 
therein. 

2  R.  S.  36,  §  II,  am'd. 

§  2159.  Penalty  if  creditor  swears  falsely. 

If  a  creditor  knowingly  swears,  in  any  proceedings  authorized  by  this  article,  that 
the  petitioner  is,  or  will  become,  indebted  to  him,  in  a  sum  of  money,  which  is  not 
really  due,  or  thereafter  to  become  due;  or  in  more  than  the  true  amount;  or  that 
more  was  paid  for  a  debt,  which  was  purchased  or  assigned,  than  the  sum,  actually 
and  in  good  faith  paid  therefor  ;  he  forfeits  to  the  trustee,  to  be  recovered  in  an  action, 
twice  the  sum,  so  falsely  sworn  to. 

Id.  §  12,  am'd. 

§  2160.  AfQ-davit  of  consenting  creditor. 

The  consent  of  a  creditor  must  be  accompanied  with  his  affidavit,  stating  as 
follows : 

1.  That  the  petitioner  is  justly  indebted  to  him,  or  will  become  indebted  to  him,  at 
a  future  day  specified  therein,  in  a  sum  therein  specified ;  and  if  he,  or  the  person 
from  whom  he  derives  title,  is  or  was  the  purchaser  or  assignee  of  the  debt,  he  must 
also  specify  the  sum,  actually  and  in  good  faith  paid  for  the  debt,  as  prescribed  in 
§  2157  of  this  act. 

2.  The  nature  of  the  demand,  and  whether  it  arose  upon  written  security,  or  other- 
wise, with  the  general  ground  or  consideration  of  the  indebtedness. 

3.  That  neither  he,  nor  any  person  to  his  use,  has  received  from  the  petitioner,  or 
from  any  other  person,  payment  of  a  demand,  or  any  part  thereof,  in  money  or  in  any 
other  way,  or  any  gift  or  reward  of  any  kind,  upon  an  express  or  implied  trust,  confi- 
dence, or  understanding,  that  he  should  consent  to  the  discharge  of  the  petitioner. 

Where  a  consenting  creditor  is  an  executor,  administrator,  trustee,  receiver,  or 
assignee,  he  may  state  the  necessary  facts  in  his  affidavit,  upon  information  and  belief, 
setting  forth  therein  the  grounds  of  his  belief ;  but  in  that  case,  the  consent  must  also 
be  accompanied  with  the  affidavit  of  the  insolvent,  to  the  effect,  that  all  the  matters 
of  fact. stated  in  the  affidavit  of  the  consenting  creditor  are  true. 

2  R.  S.  16,  §  4  (2  Edm.  17),  as  modified  by  L.  1850,  ch.  210,  §  2  (2  Edm.  482),  am'd. 
See  §  2157. 

§  2161.  When  non-resident  creditor  to  annex  account,  etc. 

A  consenting  creditor,  residing  without  the  State,  and  within  the  United  States, 
must  annex  to  his  consent  the  original  accounts,  or  sworn  copies  thereof,  and  the 
original  specialties  or  other  written  securities,  if  any,  upon  which  his  demand  arose  or 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   425 

Art.  2.     The  Petition  and  Accompanying  Papers. 

depends,  provided,  however,  that  when  such  original  specialties,  or  other  written  securi- 
ties, are  lost,  such  fact  must  be  stated  as  a  reason  for  not  annexing  thereto  the  consent, 
and  the  fact  of  the  loss,  and  the  manner  of  the  loss  thereof,  must  be  stated  in  the  affi- 
davit of  the  creditor  to  the  best  of  his  knowledge,  or  must  be  otherwise  proved  by 
affidavit  to  the  satisfaction  of  the  court ;  and  the  court  may  thereupon,  in  such  case 
or  proceeding,  by  its  order,  dispense  with  the  annexing  to  such  consent  of  the  original 
specialties  or  other  written  securities. 
Art.  7,  §  9,  R.  S.,  am'd. 

§  2162.  Petitioner's  schedule. 

The  petitioner  must  annex  to  his  petition  a  schedule,  containing: 

1.  A  full  and  true  statement  of  all  his  creditors. 

2.  A  statement  of  the  place  of  residence  of  each  creditor,  if  it  is  known  ;  or,  if  it  is 
not  known,  a  statement  of  that  fact. 

3.  A  statement  of  the  sum  which  he  owes  to  each  creditor,  and  the  nature  of  each, 
debt  or  demand,  whether  arising  on  written  security,  on  account,  or  otherwise. 

4.  A  statement  of  the  true  cause  and  consideration  of  his  indebtedness  to  each 
creditor,  and  the  place  where  the  indebtedness  accrued. 

5.  A  statement  of  any  existing  judgment,  mortgage,  or  collateral  or  other  security 
for  the  payment  of  the  debt. 

6.  A  full  and  true  inventory  of  all  his  property,  in  law  or  in  equity,  of  the  incum- 
brances existing  thereon,  and  of  all  the  books,  vouchers,  and  securities,  relating  thereto. 

Art.  3,  §  5,  R.  S. 

§  2163.     [Am'd,  1896.]     His  affidavit. 

An  affidavit,  in  the  following  form,  subscribed  and  taken  by  the  petitioner  before 
the  county  judge,  or  in  the  city  of  New  York,  before  the  judge,  holding  the  term  of  the 
court,  at  which  the  order  specified  in  the  next  section  is  made,  must  be  annexed  to  the 
schedule  : 

"  I, ,  do  swear  "  (or  "  affirm,"  as  the  case  may  be),  "  that  the  matters  of  fact, 

stated  in  the  schedule  hereto  annexed,  are,  in  all  respects,  just  and  true ;  that  I  have 
not,  in  contemplation  of  my  becoming  insolvent,  or  within  two  years  before  presenting 
the  petition  herein,  disposed  of  or  made  over  any  part  of  my  property,  not  exempt  by 
express  provision  of  law  from  levy  and  sale  by  virtue  of  an  execution,  for  the  future 
benefit  of  myself  or  my  family,  or  disposed  of  or  made  over  any  part  of  my  property 
in  order  to  defraud  any  of  my  creditors  ;  that  I  have  not,  in  any  instance,  created  or 
acknowledged  a  debt  for  a  greater  sum  than  I  honestly  and  truly  owed ;  and  that 
I  have  not  paid,  secured  to  be  paid,  or  in  any  way  compounded  with,  any  of  my 
creditors,  with  a  view  fraudulently  to  obtain  the  prayer  of  my  petition ;  that  I  have 
not  done,  suffered,  or  been  privy  to  any  act,  matter,  or  thing  which,  if  accomplished, 
would  be  ground  for  withholding  my  discharge  under  the  provisions  of  this  act,  or 
invalidate  such  discharge  if  granted." 

The  omission  by  the  petitioning  creditor  to  comply  with  the  pro- 
visions of  the  statute  prescribing  certain  specific  matters  to  be 
contained  in  the  petition  or  added  to  it,  was  held  not  to  be  a 
defect  depriving  the  officer  of  jurisdiction,  but  at  most  an  irreg- 
ularity to  which  objection  should  be  made  before  the  officer. 
Russell  Co.  V.  Armstrong,  12  Abb.  472  ;  Matter  of  Edward  Phillips, 
43  Barb.  108.     Though  it  would  be  otherwise  if,  after  rejecting 


426   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.  2.     The  Petition  and  Accompanying  Papers. 


the  debt  required  by  that  provision  to  be  released,  being  a  secured 
debt,  less  than  two-thirds  in  amount  of  the  creditors,  as  shown  in 
the  petition,  had  united  in  the  proceeding.  Morewoodv.  Hollister, 
2  Seld.  309.  The  affidavit  cannot  be  sworn  to  before  another 
officer  authorized  to  administer  oaths  as  a  commissioner,  and  if  so 
verified  is  void  ;  it  must  be  sworn  to  before  the  officer  entertain- 
ing the  proceeding  and  the  defect  cannot  be  corrected  by  making 
a  new  affidavit  on  the  hearing.  Small  v.  Wlicaton,  2  Abb.  175. 
If  not  sworn  to  before  the  judge  entertaining  the  proceeding  or 
subscribed  by  him  prior  to  granting  the  order  for  the  creditors  to 
show  cause,  it  is  a  fatal  defect,  which  renders  the  assignment  and 
discharge  void,  and  a  subsequent  verification  of  the  petition  will 
not  cure  the  defect.  Ely  v.  Cooke,  38  N.  Y.  365.  A  petition 
which  shows  on  its  face  that  it  is  not  signed  by  two-thirds  of  the 
creditors  gives  the  officer  no  jurisdiction,  and  a  discharge  based  on 
it  is  void.  Morrow  v.  Freeman,  61  N.  Y.  515,  citing  7  Johns. 
75,  3  Paige,  338,  28  Barb.  416,   12  N.  Y.  575. 

Precedent  for  Petition. 

To  the  County  Court  of  Ulster  County  : 

The  petition  of  Charles  Ramsay,  an  insolvent  debtor,  respectfully 
shows  : 

First.  That  your  petitioner  resides  at  the  town  of  Esopus,  in  the 
county  of  Ulster,  and  State  of  New  York. 

Second.  That  he  is  an  insolvent  debtor,  and  is  unable  to  pay  all  his 
debts  in  full. 

Third.  That  he  is  willing  to  assign  his  property  for  the  benefit  of  all 
his  creditors,  and  in  all  other  respects  to  comply  with  the  provisions  of 
article  i,  of  title  i,  of  chapter  17,  of  the  Code  of  Civil  Procedure,  for 
the  purpose  of  being  discharged  from  his  debts. 

Wherefore  your  petitioner  prays  that  upon  his  so  doing  he  may  be 
discharged  accordingly. 

Dated  September  i,  1882.  CHARLES  RAMSAY. 

Ulster  County,  ss.  : 

Charles  Ramsay,  of  said  county,  being  duly  sworn,  says  that  he  is 
the  petitioner  in  the  annexed  petition  named  ;  that  he  knows  the  con- 
tents thereof,  and  that  said  petition  is  in  all  respects  true  in  matter  of 

fact. 

CHARLES  RAMSAY. 

.Subscribed  and  sworn  to  before  me,  | 
this  29th  day  of  September,  1882.  \ 

\VM.   LAWTON, 
County  Judge  of  Ulster  County. 


DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS    DEBTS.    427 
Art.   2.     The  Petition  and  Accompanying  Papers. 

Petition  for  Discharge  of  Insolvent.     (4  App.  Div.  301.) 

To  the  County  Court  of  the  County  of  Ulster  : 

The  petition  of  Anthony  W.  Dimock,  an  insolvent  debtor,  respect- 
fully shows  : 

1.  That  your  petitioner  resides  in  the  town  of  Denning,  in  the  county 
of  Ulster  and  State  of  New  York. 

2.  That  he  is  an  insolvent  debtor,  and  is  unable  to  pay  all  his  debts 
in  full. 

3.  That  he  is  willing  to  assign  his  property  for  the  benefit  of  all  his 
creditors,  and  in  all  other  respects  to  comply  with  the  provisions  of 
article  i,  of  title  i,  chapter  17,  of  the  Code  of  Civil  Procedure,  for  the 
purpose  of  being  discharged  from  his  debts. 

Wherefore,  your  petitioner  prays  that  upon  his  so  doing  he  may  be 
discharged  accordingly. 

Dated  October  2,^^1893.  ANTHONY  W.  DIMOCK. 

{Add  verification^ 

It  seems  that  an  instrument  by  a  creditor  which  "  agrees  to 
release  "  is  not  an  absolute  release  but  a  conditional  agreement 
to  release,  and  is  not  in  compliance  with  the  statute.  Matter  of 
Dimock,  4  App.  Div.  301. 

It  would  seem  that  the  conditions  precedent  to  the  petitioner's 
discharge  which  he  must  affirmatively  establish  are  :  first,  that 
at  the  time  of  presenting  his  petition,  he  is  a  resident  of  the 
county  where  the  proceeding  is  brought  ;  second,  that  creditors 
having  debts  owing  them  in  good  faith,  amounting  to  not  less 
than  two-thirds  of  all  the  debts  owing  to  him  by  creditors  in  the 
county,  shall  at  the  time  of  filing  of  the  petition  consent  to 
his  discharge  ;  third,  that  he  is  justly  and  truly  indebted  to  the 
consenting  creditors  in  a  sum  which  amounts  in  the  aggregate  to 
two-thirds  of  all  his  debts.  Matter  of  Dimock,  ii  Misc.  611,  66 
St.  Rep.  352,  24  Civ.  Pro.  313.  See  the  same  case  upon  appeal 
as  to  who  are  not  bona  fide  creditors  under  the  statute. 

The  petitioner  had  been  a  member  of  a  corporation  whose 
stock  was  of  little  or  no  value,  and  in  order  to  create  a  demand 
for  such  stock,  the  petitioner  asked  two  of  the  consenting  cred- 
itors, who  were  officers  with  him  of  the  same  corporation,  to  buy 
and  sell  the  stock  on  the  market,  agreeing  to  indemnify  them 
against  loss  ;  held,  that  these  confederates  were  not  creditors  of 
the  petitioner  as  required  by  the  statute.  Matter  of  Dimock,  \ 
App.  Div.  306. 

Under  2  R.  S.  16,  providing  for  "  voluntary  assignments  made 
pursuant  to  the  application  of  an  insolvent  and  his  creditor,  and 


428   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS    DEBTS. 
Art.   2.     The  Petition  and  Accompanying  Papers. 

from  which  statute  the  present  provisions  of  the  Code  are  the  out- 
come, it  was  held  that  when  the  schedule  annexed  to  the  petition, 
presented  by  the  insolvent,  shows  upon  its  face  that  the  creditors 
joining  in  the  petition  do  not  own  two-thirds  of  the  debts  owing  by 
the  insolvent,"  it  is  a  jurisdictional  defect  and  the  discharge  based 
upon  the  petition  is  void.      Morroiv  v.  Freeman,  6\  N.  Y.  517. 

It  was  said  that  the  fact  that  the  petitioners  are  not  creditors 
for  two-thirds  of  the  aggregate  of  the  insolvent's  debts  is  sufThcient 
to  prevent  granting  a  discharge,  though  not  ground  for  avoiding 
it  after  it  has  been  granted.  Enibcrsons  Case,  16  Abb.  457  ;  Small 
V.  Graves,  7  Barb.  576 ;  Ayers  v.  Scribner,  17  Wend.  407.  But  in 
Morroiv  v.  Freeman,  61  N.  Y.  515,  it  was  determined  that  where 
this  fact  appeared  on  the  face  of  the  proceedings,  the  discharge 
was  invalid.  A  creditor  who  has  the  body  of  his  debtor  in 
execution  cannot  be  a  petitioning  creditor  under  the  statute. 
Beaty  v.  Beaty,  2  Johns.  Ch.  430.  But  the  arrest  and  detention 
only  amount  to  a  satisfaction  of  the  judgment  for  the  time,  and 
after  the  creditor  is  discharged  from  arrest,  the  creditor  may 
petition  as  if  no  arrest  had  been  made.  Fasset  v,  Talmage,  15 
Abb.  205.  Under  the  Revised  Statutes  the  af^davits  must  set 
forth  the  nature  of  the  demands  and  the  general  ground  and  con- 
sideration of  the  indebtedness,  or  jurisdiction  was  not  acquired 
under  the  provisions  of  the  statute.  Merry  \.  Sweet,  43  Barb.  476. 
Names  without  amounts  attached  to  consents  are  of  no  avail. 
Rusher  v.  Sherman,  28  Barb.  416  ;  Stanton  v.  Ellis,  12  N.  Y.  575. 

Consent  of  Creditors,  to  be  Annexed  to  Petition. 

We,  the  undersigned,  creditors  of  Charles  Ramsey,  of  the  town  of 
Esopus,  in  the  county  of  Ulster,  an  insolvent  debtor  having  debts  due 
to  us,  in  good  faith,  to  the  amount  severally  set  opposite  our  names 
upon  the  accounts,  notes,  and  securities,  copies  of  which  are  hereto  an- 
nexed, hereby  consent  to  the  discharge  of  the  said  Charles  Ramsey  from 
his  debts,  upon  his  complying  with  the  provisions  of  article  i,  of  title  i, 
of  chapter  17,  of  the  Code  of  Civil  Procedure.  We  hereby  nominate 
Anthony  Benson  as  trustee  in  this  proceeding. 

Dated  Oct.  i,  1882. 

Amount   of 
Name  of  creditor.  debt  owing. 

W.  F.  Romer $8,618  50 

G.  N.  Van  Duesen 6,81844 

Eliza  Wilson,  as  Executrix  of  A.  P.  Wilson,  deceased 12,469  50 

Deha  O'Neil 2,982   23 

{Add  acknowledgment.')  


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEIMS.    429 


Art.   2.     The  Petition  and  Accompanying  Papers. 


Consent  of  Creditors  to  Discharge.     (4  App.  Div.  301.) 

We,  the  undersigned  creditors  of  Anthony  \V.  Dimock,  of  the  town  of 
Denning,  in  the  county  of  Ulster,  an  insolvent  debtor,  having  debts  due 
us  in  good  faith  to  the  amount  severally  set  opposite  our  names  upon 
the  accounts,  copies  of  which  are  hereto  annexed,  hereby  consent  to  the 
discharge  of  the  said  Anthony  W.  Dimock  from  all  his  debts,  upon  his 
complying  with  the  provisions  of  article  i,  of  title  i,  of  chapter  17,  of 
the  Code  of  Civil  Procedure.  We  hereby  nominate  Henry  M.  Potter 
as  trustee  in  this  proceeding. 

Dated,  etc. 

(Insert  names  of  consenting  creditors.) 

■  Section  2153  is  a  re-enactment  of  the  Laws  of  1850,  which 
changed  the  rule  as  it  was  held  in  Matter  of  Shcrryd,  2  Paige,  602. 

A  petitioning  creditor,  who  adds  to  his  signature  the  declaration 
of  release,  thereby  transfers  to  the  assignee  every  and  any  lien  or 
security  upon  the  estate  and  property  of  the  debtor,  not  a  lien  or 
security  upon  the  property  of  a  third  person  ;  when,  therefore, 
such  creditor  has  a  joint  judgment  against  two,  the  signing  of  the 
petition  of  one  does  not  transfer  to  the  assignee  his  claim  against, 
or  lien  upon,  the  property  of  the  other.  Ellsivorth  v.  Caldwell, 
27  How.  188,  afifirmed,  48  N.  Y.  680. 

In  connection  with  §  2156,  see  §  1942  of  the  Code  of  Civil 
Procedure,  regulating  the  compounding  of  debts  by  joint  debtors. 
Where  one  joint  debtor  compounds  to  his  creditor,  he  only  is  re- 
leased, and  a  member  of  a  partnership  cannot  compound  for  the 
partnership  debt,  until  the  partnership  has  been  dissolved  by- 
mutual  consent  or  otherwise.  See,  also,  §  1944,  providing  that 
a  joint  debtor  who  has  not  compounded  his  debt  may  compel 
his  joint  debtor  who  has  compounded  the  debt,  to  contribute 
ratably  as  if  he  had  not  been  discharged. 

In  Slidell  V.  McCrea,  i  Wend.  156,  under  the  former  statute,  it 
was  held  that  where  the  debtor  procured  a  friendly  creditor  to 
purchase  an  outstanding  indebtedness  for  less  than  its  face,  and 
the  purchaser  afterward  joined  in  the  petition  for  the  debtor's  dis- 
charge, placing  the  debt  at  its  full  value  or  amount,  and  without 
it  two-thirds  did  not  join,  that  the  discharge  was  void.  This 
rule  was  not  applied  where  a  purchaser  had,  some  time  previous 
to  the  application  and  without  the  knowledge  of  the  debtor,  ob- 
tained the  claim  and  held  it  for  its  full  amount.  The  mere  pur- 
chase of  a  claim  for  less  than  its  face  and  signing  the  petition 
for  the  full  amount  would  not  vitiate  the  discharge.     Where  the 


430    DISCHARGE   OF   INSOLVENT   DEBTOR   FROxM    HIS   DEBTS. 
Art.   2.     The  Petition  and  Accompanying  Papers. 


liability  of  an  insolvent,  as  indorser  upon  unpaid  promissory 
notes,  has  become  fixed  by  protest  and  notice,  the  holders  of 
protested  paper  may  join  in  the  petition,  and  the  debts  they 
represent  are  to  be  counted  in  determining  whether  or  not  the 
requisite  amount  is  represented  in  the  petition.  This  is  because 
the  discharge  operates  upon  these  obligations.  Peoples.  Suther- 
land, 8 1  N.  Y.  I.  One  who  has  become  a  creditor  of  an  insolvent, 
knowing  him  to  be  such,  by  buying  a  demand  against  him  for 
less  than  its  amount,  cannot,  by  suing  and  recovering  judgment 
for  the  whole  amount,  entitle  himself  to  be  considered  a  creditor 
to  the  actual  amount  paid  for  the  debt  or  demand,  and  prosecut- 
ing the  debt  to  judgment  does  not  alter  the  case.  Embcrson  s 
Case,  i6  Abb.  457.  Where  the  assignee  of  a  demand  petitions 
as  a  creditor,  to  the  full  amount,  instead  of  to  the  amount  which 
he  paid  for  it,  the  discharge  is  not  void,  unless  it  is  shown  that 
the  insolvent  did  not  act  in  good  faith.  Small  v.  Graves,  7 
Barb.  576. 

While,  under  the  provisions  for  insolvent's  discharge,  a  creditor 
holding  security  cannot  become  a  consenting  creditor  under 
the  act,  with  respect  to  the  debt  so  secured,  unless  he  adds  to 
or  includes  in  his  consent  a  written  declaration  under  his  hand 
to  the  effect  that  he  relinquishes  the  security,  so  far  as  it  affects 
that  property  ;  yet,  in  equity,  a  secured  creditor  of  an  insolvent 
may  prove  his  entire  claim  regardless  of  the  security  received 
and  dividend  thereon.  The  court  stated  that  the  rules  in  bank- 
ruptcy cases  proceed  from  the  provisions  of  the  statute  and 
they  are  not  controlling  upon  a  court  administering  in  equity, 
and  upon  the  estates  of  insolvent  debtors.  People  v.  Remington 
&  Sons,  25  Abb.  N.  C.  80.  Compare  Matter  of  Ives,  25  Abb. 
N.  C.  66. 

Where  such  creditors  have  security  for  any  part  of  the  debts 
due  them,  and  neglect  to  sign  the  declaration  required  by  the 
statute,  they  will  not  be  regarded  by  the  statute  as  petitioners 
with  regard  to  tl\e  debts  so  secured,  and  when,  after  rejecting 
such  debts,  less  than  two-thirds  in  amount  of  the  creditors  of 
the  insolvent,  as  shown  by  the  petition,  have  joined  in  signing 
and  presenting  it,  the  officer  to  whom  it  is  presented  obtains 
no  jurisdiction   to  grant  a  discharge.     Morewood  v.  Hollister,  2 

Seld.  309. 

But  in  case  two-thirds  in  amount  of  the  creditors,  exclusive  of 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   431. 


Art.  2.     The  Petition  and  Accompanying  Papers. 


such  debts,  have  joined  in  the  proceeding,  it  seems  such  omission 
would  be  only  an  irregularity  which  would  be  waived,  unless  ob- 
jection is  made  on  the  hearing.  Russell  Manuf.  Co.  v.  Arm- 
strong,  12  Abb.  472.  It  is  said,  in  Sonic  v.  Chase,  i  Robertson,. 
222,  that  the  omission  of  a  petitioning  creditor  to  relinquish  a 
security  does  not  affect  the  jurisdiction  or  avoid  the  discharge  ; 
the  omission  of  a  petitioning  creditor  to  state  that  he  relinquished 
a  judgment  held  by  way  of  security  is  not  a  jurisdictional  defect ; 
it  is  a  mere  irregularity  that  may  be  cured  by  amendment.  Ex 
parte  Phillips,  A^i  Barb.  108;  Russell  Mamif.  Co.  v.  Armstrong, 
12  Abb.  472.  An  indorsement  on  the  petition  by  a  judgment 
creditor,  stating  that  he  "  releases  to  the  assignee  to  be  appointed, 
all  claims  on  the  estate  of  the  debtor,  that  I  may  have  by  reason 
of  the  judgment  against  him  assigned  to  me,"  is  sufficient.  Aiigs- 
bury  V.  Crossinan,  10  Hun,  389.  A  petitioning  creditor  whose 
debt  is  secured  must  annex  a  declaration  relinquishing  such 
securities  for  the  benefit  of  all  the  creditors.  Morewood  v.  Hollis- 
ter,  6  N.  Y.  309.  It  is  only  claims  against  the  insolvent  which 
must  be  released  ;  it  does  not  affect  a  joint  judgment  as  to  a 
third  party.  Elsworth  v.  Caldzuell,  48  N.  Y.  680.  When  a 
creditor  has  his  debtor  imprisoned  on  execution,  he  cannot  be  a 
petitioning  creditor,  since  the  imprisonment,  so  long  as  it  con- 
tinues, is  a  satisfaction.  Bcaty  v.  Beaty,  2  Johns.  Ch.  430; 
Koenigv.  Steckel,  58  N.  Y.  475. 

Consent  of  Secured  Creditor. 

The  undersigned  creditors  of  Charles  Ramsey  of  Esopus,  in  the 
county  of  Ulster,  an  insolvent  debtor,  having  debts  owing  to  us  in 
good  faith  to  the  amounts  severally  set  opposite  our  names,  upon  the 
securities  hereinafter  described,  hereby  consent  to  the  discharge  of 
the  said  Charles  Ramsey  from  his  debts,  upon  his  complying  with  the 
provisions  of  Article  i  of  the  title  i  of  chapter  1 7  of  the  Code  of  Civil 
Procedure.  And  whereas  the  undersigned  have  and  hold  certain  mort- 
gages which  are  a  lien  upon  the  real  estate  belonging  to  the  said. 
Charles  Ramsey,  namely : 

The  Ulster  County  Savings  Institution,  mortgage  dated  July  24, 
1880,  to  secure  the  sum  of  $3,530.43,  upon  premises  described  therein 
as  follows  (here  describe  premises)  : 

The  Rondout  Savings  Bank,  a  mortgage  dated  September  30,  1880, 
for  $2,696.97,  upon  the  premises  therein  described  as  follows  (insert 
description),  which  said  mortgages  are  held  to  secure  the  payment  of 
the  aforesaid  sums.  Now,  pursuant  to  statute,  we,  the  undersigned,  do 
hereby  relinquish  the  said  mortgages  to  the  trustee  to  be  appointed 


432   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 

Art.  2.     The  Petition  and  Accompanying  Papers. 

pursuant  to  the  petition   of   said  Charles   Ramsey,  for  the  benefit  of  all 
his  creditors,  and  do  hereby  nominate  Anthony  Benson  as  such  trustee. 
THE  ULSTER  COUNTY  SAVINGS   INSTITUTION, 
[l.  s.]  By  A.  H.   BRUYN, 

President. 
THE  RONDOUT  SAVINGS  BANK, 

By  THOMAS  CORNELL, 

President. 
(Add  achiowledgment^ 

The  af^davit  of  the  consenting  creditor  must  also  state  that 
■neither  he  nor  any  person  to  his  use,  received  from  the  petitioner 
or  from  any  other  person  payment  of  a  demand  or  any  gift  or 
reward  on  the  understanding  that  he  consent  to  the  discharge  of 
the  petition  ;  and  it  has  been  held  where  the  petitioner  promised 
that,  if  he  obtained  his  discharge,  he  would  devote  five  years  of 
his  life  to  the  benefit  of  his  consenting  creditors,  that  while  the 
court  would  not  hold  that  such  promise  was  a  valuable  gift,  yet 
it  seemed  to  be  tampering  with  the  good  faith  which  the  statute 
requires,  and  it  seems  that  consents  thus  required  will  not  be 
allowed.     Matter  of  Dimock,  4  App.  Div.  309. 

The  Code  requires  the  consent  of  the  consenting  creditors  to 
be  accompanied  with  his  af^davit,  stating  the  nature  of  the  de- 
mand and  the  general  ground  or  consideration  of  the  indebted- 
ness. In  the  Matter  of  Dimock,  4  App.  Div.  307,  the  court,  it 
seems,  gives  as  one,  among  other  reasons,  for  dismissing  the 
petition  of  an  insolvent,  that  the  facts  of  the  case  left  it  open  to 
question  whether  the  real  nature  of  the  consenting  creditor's  de- 
mand with  the  general  ground  of  the  indebtedness,  was  not 
suppressed. 

A  petitioning  creditor's  affidavit,  that  the  sum  annexed  to  his 
name  is  justly  due  to  him  from  the  insolvent  for  two  promissory 
notes  specified,  does  not  state  the  nature  of  his  demand  "  with 
the  general  ground  and  consideration  of  the  indebtedness;  "  and 
if  the  claim  so  stated  is  necessary  to  make  up  the  requisite  two- 
thirds,  the  judge  does  not  gain  jurisdiction.  Gillies  v.  Crawford, 
2  Hilt.  338  ;  Merry  v.  Siveet,  43  Barb.  475.  Stating  that  the 
sum  is  justly  due  to  him  from  the  insolvent  for  goods,  wares,  and 
merchandise,  sold  and  delivered,  secured  by  indorsement  of  a 
note  specified,  held  good.  Pratt  v.  Chase,  29  How.  296.  See 
Matter  of  Cook,  15  Johns.  183.  If  the  petition  fails  to  state 
grounds  of  indebtedness,  and  the  defect  is  amended  upon  ob- 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM   HIS   DEBTS.   433 


Art.   2.     The  Petition  and  Accompanying  Papers. 


jection  taken  before  the  judge,  the  discharge  will  be  valid. 
Matter  of  Hurst,  7  Wend.  239;  Small  v.  Whcaton,  2  Abb.  275. 
If  he  fails  to  amend  at  the  hearing  and  his  application  is  denied 
for  that  reason,  he  may  afterward  move  for  a  rehearing  and  for 
leave  to  amend,  but  he  must  first  procure  the  order  denying  his 
application  to  be  set  aside,  that  order  being  properly  the  end  of 
the  proceeding.  Matter  of  Roscnburg,  10  Abb.  (N.  S.)  450. 
Where  the  afifidavits  of  the  petitioning  creditors  were  made  in 
another  State,  sworn  to  before  a  commissioner  residing  in  another 
State,  a  certificate  of  the  secretary  of  State  of  that  State  is  not 
necessary  to  confer  jurisdiction.  Rusher  v,  Sherman,  28  Barb. 
416. 

Precedent  by  Affidavit  for  Creditor. 

State  of  New  York,  ^ 
County  of  Ulster,  )     ' ' 

Eliza  Wilson,  of  said  county,  being  duly  sworn,  says  that  she  is  the 
executrix  of  Aaron  P.  Wilson, 'deceased,  and  as  such  executrix  is  one 
of  the  creditors  named  in  the  accompanying  consent  to  the  discharge 
of  Charles  Ramsey,  an  insolvent  debtor.  That  deponent  is  a  resident 
of  Union  Avenue  in  the  city  of  Kingston,  Ulster  County,  N.  Y.  That 
said  Charles  Ramsey  is  justly  indebted  to  this  deponent  as  such  execu- 
trix in  the  sum  of  $12,469.56.  The  said  indebtedness  arose  upon  the 
following  facts  :  The  said  Ramsey  borrowed  of  said  estate  the  sum  of 
$12,000,  and  to  secure  such  sum  gave  his  note  to  said  estate  of  date  of 
October  15,  1879,  for  $12,000.  That  said  estate  is  now  the  owner  and 
holder  of  said  note  ;  that  deponent,  as  such  executrix,  has  not,  nor  has 
said  estate,  any  other  security,  written  or  otherwise,  for  the  payment  of 
said  debt.  That  deponent  has  not,  nor  has  any  person  to  her  use,  or 
to  the  use  of  said  estate,  received  from  the  said  Ramsey,  or  from  any 
other  person,  payment  of  said  demand,  or  any  part  thereof,  in  money  or 
in  any  other  way,  or  any  gift  or  reward  of  any  kind  upon  an  express  or 
implied  trust,  confidence  or  understanding  that  she  should  consent  to 
the  discharge  of  the  said  Ramsey.  The  said  deponent  makes  this  affi- 
davit of  her  personal  knowledge.  And  that  letters  testamentary  were 
duly  issued  to  this  deponent  on  the  estate  of  Aaron  P.  Wilson,  deceased, 
out  of  the  surrogate's  court  of  Ulster  County  on  the  12th  day  of  May, 
1880.  That  on  the  ist  day  of  September,  1882,  an  order  was  duly  made 
and  entered  in  said  court,  authorizing  this  deponent  to  become  a  con- 
senting creditor  in  this  matter,  pursuant  to  the  provisions  of  §  2153  of 
the  Code  of  Civil  Procedure. 

(Jurat.)  (Signature.) 

28 


434  DISCHARGE   OF   INSOLVENT   DEBTOR   FROM   HIS   DEBTS. 
Art.   2.     The  Petition  and  Accompanying  Papers. 

Verified  Statement  of  Debt  by  Creditor.     (4  App.  Div.  301.) 

Anthony  W.  Dimock,  Dr., 

To  the  Home  Insurance  Company, 
To  judgment  recorded  in  the  Supreme  Court  of  the 
State  of   New  York  against   Anthony  W.  Dimock, 

and  entered   January  30,  1890 ....      $124,239.95 

To  interest  at  6  per  cent,  to  May  i,  1893 23,247.49 

^148,487.44 
State  of  New  York  ) 

City  and  County  of  New  York,  [  ^^' ' 

William  L.  Bigelow  being  duly  sworn  says  that  he  is  the  secretary  of 
the  Home  Insurance  Company,  one  of  the  creditors  named  in  the  ac- 
companying consent  to  the  discharge  of  Anthony  W.  Dimock,  an  in- 
solvent debtor.  That  said  Home  Insurance  Company  is  a  domestic 
corporation  organized  under  the  laws  of  the  State  of  New  York. 

That  the  said  Anthony  W.  Dimock  is  justly  indebted  to  said  Home 
Insurance  Company  in  the  sum  of  $148,487.44.  That  said  indebtedness 
arose  as  follows  :  (insert  statement  of  facts). 

That  on  or  about  May  15th,  1884,  payment  of  said  loans  was  de- 
manded, and  subsequently  the  said  company  realized  as  much  as  pos- 
sible upon  the  securities  ;  that  the  judgment  recovered  is  for  the  unpaid 
balance  of  the  indebtedness,  viz.,  $124,239.95. 

That  said  Company  has  not,  nor  has  any  person  for  its  use,  received 
from  the  said  Dimock  or  from  any  other  person,  payment  of  the  said 
judgment  or  of  any  part  thereof  in  money  or  in  any  other  way  or  any 
gift  or  reward  of  any  kind  upon  an  express  or  implied  trust,  confidence. 
or  understanding  that  it  should  consent  to  the  discharge  of  the  said 
Dimock.  That  said  Company  has  no  security,  written  or  otherwise,  for 
the  payment  of  said  debt. 

(  Verification  and  signature.) 

The  omission  of  petitioning  creditors,  who  reside  in  other  States, 
to  annex  the  original  accounts  or  sworn  copies,  and  the  original 
specialties  or  securities,  if  any,  on  which  their  demands  arise,  is 
fatal  to  the  proceedings,  and  the  defect  cannot  be  supplied  on  the 
hearing.      Warrin's  Case,  16  Abb.  457,  n. 

The  interest  of  an  insolvent  debtor  in  a  patent  right  under  an 
assignment  which  obliges  him  to  prosecute  claims  for  infringement 
at  his  own  expense,  is  only  that  of  a  trustee  and  cannot  be  sold 
as  an  asset  of  his  estate.  Though  this  section  under  subdivision  i 
requires- a  full  and  true  statement  of  all  the  petitioner's  creditors, 
yet  where,  in  the  list  of  creditors  annexed  to  the  petition,  there 
appeared  the  name  of  a  creditor  recently  deceased,  of  whose 
estate  an  administrator  had  been  appointed,  it  was  held  that  such 
error  did  not  make  the  proceedings  void,  as  the  administrator's 
appointment  did  not  appear  to  have  been  know^n  to  the  petitioner. 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   435 
Art.   2.     The  Petition  and  Accompanying  Papers. 


Wheeler  v,   Emmeluth,  12   Supp.  58,   reversed  on  other  grounds, 
121  N.  Y.  243,  30  St.  Rep.  919. 

The  jurisdiction  of  the  court  under  the  Code  providing  for  an 
insolvent's  discharge  is  special,  and  the  statutory  requirements 
must  be  strictly  followed.  Thus,  where  the  schedule  filed  with 
the  petition,  though  giving  name  of  the  creditor  together  with  a 
street  and  house  number,  gave  no  name  of  the  town  where  such 
street  was  located  and  in  which  the  creditor  resided,  the  schedule 
was  held  to  be  fatally  defective  and  the  court  without  jurisdiction 
to  grant  a  discharge  or  to  permit  an  amendment  of  the  schedule. 
Matter  of  Cohen,  9  Supp.  498,  18  Civ.  Pro.  157,  16  Daly  70. 

It  is  also  a  fatal  defect  for  the  debtor  to  omit  the  name  of  a 
creditor  in  his  schedule,  and  he  is  not  excused  therefrom  because 
he  omitted  it  under  advice  of  counsel  that  he  had  a  good  defence 
to  the  claim,  and  such  admission  is  not  cured  by  a  subsequent  in- 
sertion of  the  name  where  it  was  omitted  under  circumstances 
which  indicated  fraud.  Starr  v.  Patterson,  27  Abb.  N.  C.  19; 
compare  Bully  more  v.  Cooper,  46  N.  Y.  236. 

The  petition  and  schedule  need  not  state  the  grounds  of  credit- 
or's demands  with  the  particularity  required  for  a  confession  of 
judgment.  Soiile  v.  Chase,  i  Robt.  222.  When  it  appears,  from 
the  papers  presented,  that  the  true  cause  and  consideration  of  the 
alleged  indebtedness  of  an  insolvent  debtor  to  a  creditor  are  not 
set  forth  in  the  schedule,  this  is  a  matter  proper  for  the  consider- 
ation and  determination  of  the  officer  before  whom  the  matter  is 
heard,  and  except  as  to  those  matters  which  the  statute  holds  suf- 
ficient to  bar  a  discharge,  the  creditors  having  notice,  and  failing 
to  appear  and  make  objection,  will  be  concluded  in  case  the  officer 
has  jurisdiction.  People  v.  Striker,  24  Barb.  649.  The  statement 
as  to  the  cause  of  a  debt  that  it  is  "  on  account  "  on  a  judgment 
"  on  a  promissory  note  "  is  insufficient.  Merry  v.  Szveet,  43  Barb. 
475.  It  will  not  invalidate  a  discharge  where  there  is  a  simple  mis- 
statement of  amount  due  any  creditor,  nor  where  the  name  of  the 
creditor  is  omitted  from  the  schedule  ;  to  have  that  effect,  it  must 
appear  that  the  omissions  were  fraudulent.  American  Flask  Co. 
v.  Son,  7  Robt.  233  ;  Small  w.  Graves,  7  Barb.  576  ;  Sonlev.  Chase, 
I  Abb.  (N.  S.)  48  ;  Matter  of  Hurst,.']  Wend.  239  ;  Ayres  v.  Scrib- 
ner,  17  id.  407.  And  where  a  debtor  was  discharged  under  the 
laws  of  another  State  relating  to  insolvency,  he  was  relieved  from 
liability  for  the   debt,  although  his   name  was  omitted  from  the 


436   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    IIIS   DEBTS. 


An.   2.     The  Petition  and  Accompanying  Papers. 

schedule  in  the  proceedings,  and  he  had  no  notice  of  the  proceed- 
ings, the  omission  having  been  by  mistake  or  inadvertence  and  not 
fraudulent  or  wilful.  Hall  v.  Robbins,  4  Lans.  463.  The  debtor's 
schedule  must  not,  however,  be  defective  in  respect  to  matters 
necessary  to  confer  jurisdiction  on  the  officer.  The  amount  due 
each  creditor  named  cannot  be  omitted,  nor  can  a  blank  be  left 
opposite  the  name  of  one  of  the  creditors  named,  and  no  sum 
given.  These  defects  are  jurisdictional,  and  render  the  discharge 
void,  notwithstanding  the  recital  that  two-thirds  in  amount  of  the 
creditors  united  in  the  petition,  and  that  it  satisfactorily  appeared 
to  the  officer  that  the  insolvent  had  in  all  respects  complied  with 
the  statute.  Stanton  v.  Ellis,  2  Kern.  575.  The  nature  of  the 
debt,  and  the  true  cause  and  consideration  of  it,  must  appear. 
Slidell  V.  McRea,  i  Wend.  156;  Matter  of  Cook,  15  Johns.  83; 
McNair  v.  Gilbert,  3  Wend.  344;  Stanton  v.  Ellis,  12  N.  Y.  575. 
This  is  held  when  the  question  arises  collaterally.  But  see  Merry 
v.  5w^^/,  43  Barb.  476;  Schacffer  v.  Sotde,  23  Hun,  583.  The 
schedule  may  be  amended  on  the  return  day.  Matter  of  Hurst, 
7  Wend.  239;  Brodie  v.  Stephens,  2  Johns.  289  ;  Matter  of  Rosen- 
burg,  10  Abb.  (N.  S.)  450;  Moreivood  v.  Hollister,  2  Seld.  311. 
The  trust  resulting  to  a  debtor  in  respect  to  any  surplus  that  may 
remain  after  payment  of  debts  under  an  order  appointing  a  re- 
ceiver of  his  property,  or  under  a  general  assignment  for  the  ben- 
efit of  creditors,  is  an  interest  which  he  must  disclose  and  assign 
in  proceedings  to  obtain  a  discharge  from  his  debts.  Billings' 
Case,  21  How.  448;  Bully  more  v.  Cooper,  46  N.  Y.  236.  If  the 
schedule  annexed  to  the  petition  state  the  consideration  of  the 
plaintiff's  debt  as  "  notes  and  open  accounts  for  money  loaned 
and  mterest  thereon,"  it  is  sufficient  to  support  the  jurisdiction. 
Schacffer  v.  Soule,  23  Hun,  583.  Where  an  action  is  brought 
upon  an  application  which  was  obtained  by  false  representations, 
the  fraud  is  no  part  of  the  consideration  of  the  debt,  and  it  is  not, 
therefore,  necessary  to  set  it  forth  in  a  petition  for  a  discharge  in 
order  to  give  jurisdiction,  and  the  debtor,  having  been  discharged 
in  the  insolvency  proceedings,  is  entitled  to  have  the  judgment 
in  the  action  marked  satisfied,  and  he  is  no  longer  liable  to 
arrest.  Schacffer  v.  Soule,  23  Hun,  583.  On  the  return  day  the 
schedules  maybe  amended.  Brodie  v.  Stephens,  2  Johns.  289; 
Matter  of  Hurst,  7  Wend.  239;  Matter  of  Rosenburg,  10  Abb. 
(N.  S.)  450. 


DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS    DEBTS.   437 
Art.   2.     The  Petition  and  Accompanying  Papers. 


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438    DISCHARGE    OF   INSOLVENT   DEBTOR    FROM    HIS    DEBTS. 
Art.   2.     The  Petition  and  Accompanying  Papers. 

An  affidavit  made  before  a  commissioner  of  deeds  is  insuffi- 
cient, and  the  proceedings  held  invalid  for  that  reason  ;  it  was  re- 
quired, under  the  statute  allowing  the  proceeding  to  be  taken 
before  a  judge,  that  the  affidavit  must  be  sworn  to  before  the 
officer  to  whom  the  petition  was  presented,  in  order  to  give  juris- 
diction to  grant  the  discharge.  Stna/lv.  Whcatoii,  2  Abb.  175; 
Ely  V.  Cook,  2  Hilt.  406,  affirmed,  28  N.  Y.  365.  And  the  same 
cases  hold  it  does  not  remedy  the  defect,  notwithstanding  on  the 
day  on  which  the  order  to  show  cause  is  returnable,  the  officer 
signed  the  jurat  to  the  affidavit,  nor  by  permitting  the  insolvent 
to  make  an  additional  affidavit  before  the  officer.  Where  the 
insolvent's  affidavit,  instead  of  stating  that  he  had  not  disposed 
of  or  made  over  any  part  of  his  estate  for  the  future  benefit 
of  himself  or  his  family,  stated  that  he  had  not  disposed  of  or 
made  over  any  part  of  his  estate  for  the  future  benefit  of  himself 
and  his  family,  it  was  held  that  the  discharge  granted  upon  it 
was  void.  Hale  v.  Sweet,  43  Barb.  475,  affirmed,  40  N.  Y.  97. 
A  judgment  confessed,  with  a  view  to  petitioning,  followed  by 
a  levy  and  sale,  amounts  to  an  assignment,  and  though  done 
in  trust  for  all  creditors  equally,  it  is  a  fraud  on  the  act  and 
vitiates  the  discharge.     Matter  of  Hurst,  7  Wend.  239. 

Section  2163  requires,  among  other  things,  in  the  petitioner's 
affidavit,  "  I  have  not  paid,  secured  to  be  paid,  or  in  any  way 
compounded  with  any  of  my  creditors,  with  a  view  fraudulently 
to  obtain  the  prayer  of  my  petition."  In  construing  this  provi- 
sion, the  Court  said  that  a  promise  by  the  petitioner  to  devote 
five  years  of  his  life  to  the  benefit  of  the  consenting  creditors 
would  seem  to  indicate  bad  faith,  and  that  consents  by  crctlitors 
thereby  obtained  should  not  be  allowed.  Matter  of  Di.nock,  4 
App.  Div.  309.  In  proceedings  under  what  was  known  as  "  The 
Two-Thirds  Act,"  Art.  III.,  title  i,  chap.  5,  part  2  of  the  Revised 
Statutes,  which  required  the  insolvent  debtor,  among  other  tilings, 
to  state:  "  I  have  not  at  any  time  or  in  any  manner  whatever 
disposed  of  or  made  over  any  part  of  my  estate,  for  the  future 
benefit  of  myelf  or  my  family,"  which  is  practically  the  wording 
in  this  section  of  the  Code  ;  it  was  held  that  where  the  petitioner 
used  the  words  "  myself  and  family,"  instead  of  the  word 
"  or "  as  required  by  statute,  that  the  affidavit  was  deficient 
and  the  discharge  granted  thereon  was  void,  and  that  judg- 
ments previously  recovered  against  the  debtor  remained  in  full 


DISCHARGE    OF    INSOLVENT   DEBTOR    FROM    HIS    DEBTS.   439 

Art.   3.     Order  to  Show  Cause  and  Proceedings  thereon. 

force.  Halcv.  Szvcct,  40  N.  Y.  100;  compare  ^?^//y;«^r/?  v.  Cooper, 
46  N.  Y.  236,  a  case  arising  under  the  act  providing  for  a  dis- 
charge of  the  debtor  imprisoned  on  execution,  Art.  VI.,  title  i, 
chap.  5,  part  2,  Revised  Statutes.  In  this  case  the  statute  re- 
quired that  at  the  time  of  the  presenting  of  the  petition,  an 
affidavit  in  a  prescribed  form  should  be  indorsed  upon  the 
petition  and  should  be  sworn  to  by  the  applicant.  It  was  held 
in  the  case  where  the  affidavit  was  not  indorsed  upon  the  peti- 
tion at  the  time  of  presenting  it,  that  the  omission  defeated  the 
jurisdiction  of  the  court,  and  that  the  section  requiring  the  peti- 
tion, and  the  section  requiring  the  affidavit,  must  be  considered 
good,  and  that  both  were  prerequisites  to  jurisdiction. 


ARTICLE  III. 

Order  to  Show  Cause  and   Proceedings   thereon. 
gg   2164  to  2172. 

§  2164.  Order  to  show  cause. 

The  petition  and  other  papers,  specified  in  the  foregoing  sections  of  this  article, 
must  be  presented  to  the  court,  and  filed  with  the  clerk.  The  court  must  thereupon 
make  an  order,  requiring  all  the  creditors  of  the  petitioner  to  show  cause  before  it,  at 
a  time  and  place  therein  specified,  why  an  assignment  of  the  insolvent's  property 
should  not  be  made,  and  he  be  thereupon  discharged  from  his  debts,  as  prescribed  in 
this  article  ;  and  directing  that  the  order  be  published  and  served,  as  prescribed  in  the 
next  section. 

§  2165.  How  order  published  and  served. 

The  order  must  be  published  and  served  in  the  following  manner : 

1.  The  petitioner  must  cause  a  copy  thereof  to  be  published  in  a  newspaper,  desig- 
nated in  the  order,  published  in  the  county ;  and  also  if  one-fourth  part  of  the  insol- 
vent's debts  accrued  or  are  due  to  creditors  residing  in  the  city  of  New  York,  in  a 
newspaper  published  in  that  city,  designated  in  the  order.  The  publication  must  be 
made  at  least  once  in  each  of  ten  weeks,  immediately  preceding  the  day  in  which  cause 
is  to  be  shown,  unless  all  the  creditors  reside  within  one  hundred  miles  of  the  place 
where  cause  is  to  be  shown,  in  which  case  the  publication  must  be  made  at  least  once 
in  each  of  the  six  weeks,  immediately  preceding  that  day. 

2.  The  petitioner  must  also  serve  upon  each  creditor,  residing  within  the  United 
States,  whose  place  of  residence  is  known  to  him,  a  copy  of  the  order  to  show  cause, 
either  personally,  at  least  twenty  days  days  before  the  day  when  cause  is  to  be  shown, 
or  by  depositing  it,  at  least  forty  days  before  that  day,  in  the  postoffice,  inclosed  in  a 
post-paid  wrapper,  addressed  to  the  creditor  at  his  usual  place  of  residence. 

Where  the  State  is  a  creditor  of  the  petitioner,  a  copy  of  the  order  must  be  served 
upon  the  attorney-general,  who  must  represent  the  State  in  the  subsequent  pro- 
ceedings. 

Art.  3,  §§  10  and  11,  R.  S.,  and  L.  1847,  ch.  366,  §  i  (4  Edm.  481),  am'd. 


440   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.   3.     Order  to  Show  Cause  and  Proceedings  thereon. 


§  2168.  Hearing. 

On  the  day  specified  in  the  order,  and  before  any  other  proceedings  are  taken  in  the 
matter,  the  petitioner  must  present  to  the  court,  and  file  with  the  clerk,  proof,  to  the 
satisfaction  of  the  court,  that  the  order  has  been  published  and  served,  as  prescribed 
in  the  last  section  ;  and  thereupon,  on  the  same  day,  or  upon  the  day  to  which  the 
hearin;?  is  adjourned,  the  court  must  hear  the  allegations  and  proofs  of  the  parties 
appearing.  Proof  of  personal  service  of  a  copy  of  the  order  upon  any  person  must 
be  made,  in  like  manner  as  proof  of  personal  service  of  a  summons,  in  an  action 
brought  in  the  Supreme  Court. 

Id.  §  12,  and  L.  1847,  ch.  366,  §  2  (4  Edm.  481),  am'd.     See  §  434. 

g  2167.  Putting  cause  on  calendar. 

Where  the  insolvent's  discharge  is  opposed,  the  court  may  direct  the  special  pro- 
ceeding to  be  placed  upon  the  calendar  for  trial.  In  that  case,  the  parties  must 
appear,  and  the  proceedings  are  the  same,  as  in  an  action,  except  as  otherwise  pre- 
scribed in  this  article  ;  and  costs,  as  in  an  action,  except  for  proceedings  before  notice 
of  trial,  may  be  awarded  to  either  party,  in  the  discretion  of  the  court. 

g  2168.  Opposing  creditor  to  file  specifications,  and  may  demand 

jury  trial. 

In  order  to  entitle  a  creditor  to  oppose  the  discharge  of  the  insolvent,  he  must,  on 
the  day  fixed,  show  cause,  or  at  such  other  time  as  the  court  directs,  file  with  the  clerk 
a  specification  of  his  objections  ;  and  he  may  then,  but  not  afterwards,  demand  a  trial, 
by  a  jury,  of  the  questions  of  fact  arising  thereupon.  If  a  trial  by  a  jury  is  not  then 
demanded,  the  questions  of  fact  must  be  tried  by  the  court,  without  a  jury.  Where 
one  or  two  or  more  opposing  creditors  demands  a  trial  by  a  jury,  all  the  material 
questions  of  fact,  arising  upon  the  objections  of  all  the  creditors,  must  be  tried  in  like 
manner,  and  at  the  same  time.  The  court  may,  in  its  discretion,  direct  the  questions 
to  be  settled,  and  plainly  stated,  in  an  order,  as  where  an  order  is  made  by  the  Su- 
preme Court,  in  an  action  pending  therein,  for  the  trial  of  questions  of  fact  by  a  jury. 
Section  13,  R.  S.,  am'd.     See  §§  1163  and  1190. 

§  2169.  Id. ;  to  file  proofs,  if  not  named  in  schedule. 

Where  the  name  of  an  opposing  creditor  does  not  appear  in  the  schedule,  he  must 
file,  with  the  specification  of  his  objections,  proof  by  afiidavit,  that  he  is  a  creditor  ; 
and  if  his  debt  is  not  set  forth  in  the  schedule,  he  must  also  file  his  affidavit,  to  the 
effect  specified  in  subdivisions  first  and  second  of  §  2160  of  this  act. 

§  2170.  Proceedings  if  jurors  do  not  agree. 

There  shall  be  but  one  trial  by  jury.  If  the  jurors  cannot  agree,  after  being  kept 
together  for  such  a  time  as  the  court  deems  reasonable,  the  court  must  discharge 
them,  and  determine  the  questions  of  fact,  or  those  questions  as  to  which  the  jurors 
have  not  agreed,  upon  the  evidence  taken  before  the  jury,  as  if  a  jury  had  not  been 
demanded. 

Id.,  §  19- 

§  2171.  When  insolvent  required  to  produce  his  non-resident 
■wife. 

Where  the  petitioner's  wife  resides  without  the  State,  the  court,  or  a  judge  thereof 
out  of  court,  may,  upon  the  application  of  any  creditor,  make  an  order,  requiring  the 
petitioner  to  bring  his  wife  before  the  court,  at  the  hearing  or  trial,  to  the  end  that  she 
may  be  examined  as  a  witness.  A  copy  of  the  order  must  be  personally  served  upon 
the  petitioner,  at  least  three  weeks  before  the  hearing.  If  it  appears,  upon  the  hearing, 
that  service  could  not,  with  due   diligence,  be  so  made,  in  consequence  of  the  peti- 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   44! 


Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 


tioner's  sickness  or  absence,  the  court  may,  in  its  discretion,  adjourn  the  hearing  or 
trial,  and  prescribe  the  time  and  manner  of  service  of  the  order  for  the  adjourned  day. 
If,  after  due  service,  the  petitioner's  wife  does  not  attend  at  the  time  and  place  ap- 
pointed, the  petitioner  is  not  entitled  to  his  discharge,  unless  he  proves,  to  the  satis- 
faction of  the  court,  by  his  affidavit,  or  upon  his  oral  examination,  or  otherwise,  that 
he  was  unable  to  procure  her  attendance. 
Id.  §§  20  and  21,  am'd  and  consolidated. 

§  2172.  Examination  of  insolvent. 

At  the  hearing  or  trial,  the  petitioner  must  be  examined  under  oath,  at  the  instance 
of  any  creditor,  touching  his  property  or  debts,  or  any  other  matter  stated  in  his 
schedule,  or  any  changes  that  have  occurred  in  the  situation  of  his  property,  since  the 
making  of  the  schedule  ;  and  particularly  whether  he  has  collected  any  debts  or 
demands,  or  made  any  transfers  of,  or  otherwise  affected,  his  real  or  personal  prop- 
erty. Any  creditor  may  contradict  or  impeach,  by  other  competent  evidence,  the 
testimony  of  the  insolvent  or  of  his  wife. 

A  notice  stating  that  the  proceeding  is  for  the  discharge  of  an 
in.solvent  need  not  specify  the  particular  statute,  and  a  defective 
reference  to  the  statute  does  not  vitiate  the  order.  Soulev.  Chase, 
I  Abb.  (N.  S.)  48  ;  but  see  39  N.  Y.  342. 

Precedent  for  Order  to  Show  Cause. 

At  a  term  of  the  County  Court  of  Ulster  County,  held  at  the  cham- 
bers of  the  county  judge  of  said  county,  on  the  29th  day  of  Sep- 
tember, 1882  : 

Present: — lion.  William  Lawton,  County  Judge. 

. ^ 

In  the  Matter  of  the  Application  of  Charles 
Ramsey,  an  Insolvent  Debtor,  for  his  dis- 
charge from  his  debts. 


On  reading  and  filing  the  petition  of  Charles  Ramsey,  an  msolvent 
debtor,  verified  on  this  29th  day  of  September,  1882,  the  consents 
andaffidavitsof  the  following  creditors  of  said  Ramsey,  viz.  :  William 
E.  Romer,  George  N.  Van  Deusen,  Eliza  Wilson,  executrix  of  A.  P. 
Wilson,  deceased,  W.  B.  Crane,  Turck  &  Burhans,  the  aftidavit  of 
Charles  Ramsey,  verified  September  8.  1882,  the  order  of  the  surro- 
gate of  Ulster  County,  granted  September  25,  1882,  authorizing  the 
executrix  of  A.  P.  Wilson,  deceased,  to  sign  consent,  and  the  affida- 
vit of  Charles  Ramsey,  verified  the  29th  day  of  September,  1882,  with 
the  accompanying  schedules,  and  on  motion  of  A.  W.  Cooper,  attor- 
ney for  said  petitioner,  it  is 

Ordered,  that  all  the  creditors  of  the  said  Charles  Ramsey  show 
cause  before  this  court,  at  a  term  thereof  to  be  held  at  the  chambers 
of  the  county  judge  of  Ulster  County,  in  the  city  of  Kingston,  said 
county,  on  the  20th  day  of  December,  1882,  at  two  o'clock  in  the  af- 
ternoon of  that  day,  why  an  assignment  of  said  insolvent's  property- 
should  not  be  made,  and  he  be  thereupon  discharged  from  his  debts, 


442    DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 


as  prescribed  in  Article  I.,  of  title  i,  of  chapter  17,  oftheCodeof  Civil 
Procedure. 

That  a  copy  of  this  order  be  published  in  the  Albany  Evening 
Journal,  the  newspaper  printed  at  Albany  (see  statute  as  to  State  pa- 
per enacted  since  Code),  in  which  legal  notices  are  required  by  law  to 
be  published,  and  in  the  Leader,  a  newspaper  published  in  the  county 
of  Ulster,  at  least  once  in  each  of  the  ten  weeks  immediately  pre- 
ceding the  said  20th  day  of  December,   1882. 

That  the  petitioner  also  cause  to  be  served  upon  each  creditor  of 
the  said  Charles  Ramsey,  residing  within  the  United  States,  whose 
place  of  residence  is  known  to  him,  a  copy  of  this  order,  either  per- 
sonally or  at  least  twenty  days  before  the  said  20th  day  of  December, 
1882,  or  by  depositing  it  at  least  forty  days  before  that  day  in  the 
postoffice,  inclosed  in  a  post-paid  wrapper,  addressed  to  the  creditor 
at  his  usual  place  of  residence.  WM.    LAWTON, 

Coiuity  Judge  of  Ulster  County. 

Order  to  Show  Cause.     (4  App.  Div.  301.) 

At   a  Special  Term   of  the  County  Court  held  at  the  Ulster  County 
court-house  in  the  city  of  Kingston,  October  2d,  1893  : 

Present  : — Hon.  A.  T.  Clearwater,  Coiiufy  Judge. 


In  the   Matter  of  the  Apphcation  of  Anthony 
W.  Dimock,  an  Insolvent,  etc. 


On  reading  and  filing  the  petition  of  Anthony  W.  Dimock,  an  in- 
solvent debtor,  verified  on  the  21st  day  of  October,  1893,  and  con- 
sents and  affidavits  of  the  following  creditors  of  said  Anthony  W. 
Dimock  (insert  names)  ;  and  the  affidavit  of  Anthony  W.  Dimock, 
with  the  accompanying  schedules  verified  August  7th,  1893,  and  on 
motion  of  B.  C.  Chetwood,  Esq.,  attorney  for  said  petitioner,  it  is 

Ordered,  that  all  the  creditors  of  the  said  Anthony  W.  Dimock  show 
cause  before  this  court  at  a  term  thereof  to  be  held  at  the  county 
judge's  chambers  in  the  city  of  Kingston  on  the  1 5th  day  of  November, 
1893,  at  II  o'clock  in  the  forenoon  of  that  day,  why  an  assignment 
of  the  said  insolvent's  property  should  not  be  made  and  he  be  there- 
upon discharged  from  his  debts  as  prescribed  in  Article  I.,  of  title  i, 
of  chapter  17  of  the  Code  of  Civil  Procedure.     And.it  is  further 

Ordered,  that  a  copy  of  this  order  be  published  in  the and 

in  the ,  newspapers  published  in  city  of  Kingston,  county 

of  Ulster,  and  in  the  New  York  Law  Journal,  a  newspaper 
published  in  the  city  of  New  York,  at  least  once  in  each  of  the  six 
vi^eeks  immediately  preceding  the  said  15th  day  of  November,  1893. 
And  it  is  further 

Ordered,  that  the  petitioner  cause  to  be  served  upon  each  creditor 
of  the  said  Anthony  W.  Dimock  residing  within  the  United  States, 
whose  place  of  residence  is  known  to  him,  a  copy  of  this  order  either 
personally   at  least  20  days  before  the  said  15th  day  of  November, 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   443 

Art.   3.     Order  to  Show  Cause  and  Proceedings  thereon. 

1893,  or  by  depositing  it  at  least  40  days  before  that  day  in  the  post- 
office  enclosed  in  a  postpaid  wrapper  addressed  to  the  creditor  at  liis 
place  of  residence.  A.   T.   CLEARWATER, 

County  Judge  of  Ulster  County. 
A  true  copy,  original  filed  Oct.  31,  1893. 

JAMES  W.   WURTS, 
Clerk. 

It  will  be  noticed  that  the  order  itself  must  now  be  published 
and  served,  and  not  a  notice  of  its  contents,  as  formerly.  Due 
publication  and  service  was  held  necessary  to  give  the  officer 
jurisdiction  and  to  authorize  him  to  grant  a  discharge  so  as  to  bar 
creditors.  Stanton  v.  Ellis,  16  Barb.  319;  Matter  of  Underwood, 
3  Cow.  59  ;  People  ex  rel.  De  mar  est  v.  Gray,  19  How.  238;  People 
V.  Daly,  4  Hun.  641.  It  is  doubtful  whether  the  question  can 
be  raised,  however,  except  upon  a  direct  proceeding  to  review, 
either  by  certiorari  or  appeal.  Rusher  v.  Sherman,  28  Barb.  416. 
In  computing  the  time  for  the  publication  and  service  of  the 
notice,  the  rule  is  held  in  like  cases  to  be  to  exclude  the  first 
day  and  include  the  last.  Westgate  v.  Handlin,  7  How.  372  ; 
Dayton  v.  Mclntyre,  5  id.  117;  Bunce  v.  Reed,  16  Barb.  347; 
Steinle  V.  Bell,  12  Abb.  (N.  S.)  171.  As  to  what  was  held  suffi- 
cient service  by  mail,  see  Hornby  v.  Cramer,  12  How.  490  ;  Bunce 
v.  Reed,  16  Barb.  347;  Steinlev.  Bell,  12  Abb.  (N.  S.)  171.  If 
notice  is  directed  to  be  published  six  weeks,  first  publication 
must  be  at  least  forty-two  days  before  day  appointed  ;  if 
ten  weeks,  at  least  seventy  days  before  such  day  and  publication 
must  be  made  in  every  intervening  week  until  the  expiration  of 
the  time.  Anonymous,  I  Wend.  90;  People  v.  Grey,  19  How. 
238.  The  officer  has  no  jurisdiction,  if,  in  any  of  the  ten  weeks, 
there  was  no  publication,  and  an  order  for  an  assignment  made 
in  such  case  is  a  nullity.  DickerJwff  v.  Ahlborn,  2  Abb.  N.  C. 
372.  The  discharge  is  void  if  the  only  proof  of  notice  for  cred- 
itors to  appear  was  of  a  notice  purporting  to  be  returnable  at  a 
date  subsequent  to  that  on  which  the  discharge  was  granted. 
Lezuis  v.  Page,  8  Abb.  (N.  S.)  200.  Until  publication  of  a  notice 
of  application  of  a  debtor  to  be  discharged  from  imprisonment  is 
made,  the  officer  is  without  jurisdiction.  People  v.  Daly,  4  Hun, 
641.  This  case  more  fully,  67  Barb.  325,  holding  that  a  mistake 
ill  the  designation  of  the  return  day  in  the  notice,  as  published 
in  one  of  the  papers,  is  fatal  to  jurisdiction,  there  being  no  ap- 
pearance.    Where  the  insolvent  is  ignorant  of,  and  cannot  ascer- 


444   DISCHARGE   OF  INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 

tain,  the  street  number  or  exact  address  of  one  or  more  of  all 
the  creditors,  it  is  a  sufificient  compliance  with  the  statute  to 
mail  the  notice  addressed  to  the  city  or  town  where  creditor  or 
creditors  to  be  served  reside.  People  v.  Sutherland,  81  N.  Y.  i. 
A  mistake  in  the  spelling  of  the  name  of  a  creditor  to  whom 
notice  is  addressed,  the  error  being  the  substitution  of  one  letter 
merely  for  another  without  effect  upon  the  sound,  and  in  case 
where  there  was  a  description  of  the  person,  does  not  affect  the 
proceeding.     People  v.  SutJierland,  81  N.  Y.  i. 

As  to  the  omission  of  the  full  addresses  of  the  creditors  in  the 
petition  in  order  that  the  court  may  correctly  determine  the  pe- 
riod for  which  publication  shall  continue,  see  Matter  of  Cohen,  18 
Civ.  Proc.  158,  16  Daly  70,  9  Supp.  499.  It  seems  that  the  ques- 
tion as  to  whether  a  judgment  creditor  was  served  with  the  order 
pursuant  to  subdivision  2,  §  2 165,  Code  Civ.  Proc,  cannot  be  deter- 
mined upon  affidavits.  Rohens  v.  Sweet,  48  Hun,  438,  i  Supp.  840. 
This  case  was  an  appeal  from  an  order  denying  a  motion  to  set 
aside  supplementary  proceedings,  the  judgment  debtor  claiming 
a  discharge  from  his  debts  as  provided  by  this  article  of  the  Code. 
The  provisions  of  the  Code  as  to  service,  etc.,  must  be  strictly 
complied  with  ;  thus,  as  subdivision  2  of  this  section  requires  the 
order  to  show  cause  to  be  served  either  personally  or  addressed 
to  the  creditor  at  his  usual  place  of  residence,  it  was  held  that 
where  the  order  was  addressed  to  the  creditor  at  his  place  of 
business,  instead  of  at  his  residence,  that  the  service  was  not 
good  and  that  the  court  did  not  require  jurisdiction  to  grant  the 
discharge.  Billinge  v.  Pickert,  39  Hun,  505,  i  St.  Rep.  70. 
This  case  also  decided  that  the  court  would  refuse  to  receive 
parol  evidence  of  personal  service,  where  the  record  itself  did  not 
show  it. 

Where  an  order  cancelling  and  discharging  two  judgments  was 
granted  without  notice  to  the  owner  of  the  judgments,  and  with- 
out proof  of  his  consent,  such  order  may  be  vacated  on  simply 
showing  want  of  notice.  Wheeler  v.  Emrneluth,  121  N.  Y.  243,  30 
St.  Rep.  919.  A  discharge  under  "  the  Two-third  Act  "  cannot  be 
granted  without  proof  of  the  service  of  notice  of  the  proceedings 
upon  each  of  the  creditors,  and  the  judge  reviewing  the  proceeding 
is  only  authorized  to  receive  legal  evidence  of  such  service,  al- 
though the  act  requires  proof  of  such  fact  to  be  "  satisfactory  "  ; 
therefore  an  af^davit  of  service,  which,  although  signed,  contained 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   445 
Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 


no  name  of  deponent  in  the  body  thereof,  was  held  to  be  de- 
fective. People  ex  rel.  Kenyon  v.  Sutherland,  16  Hun,  194. 
Where  the  petitioner  merely  promised  to  indemnify  fellow- 
ofificers  in  a  corporation  from  loss  for  buying  and  selling  stock 
of  the  corporation  on  the  market,  in  order  to  create  a  demand 
for  the  same,  it  was  held  in  effect,  that  the  petitioner  was  not 
"justly  and  truly  indebted  "  to  them  as  is  required  by  §  2174  of  the 
Code  Civ.  Proc.  before  the  court  can  direct  an  assignment. 
Matter  of  Diminock,  4  App.  Div.  305.  Where  a  deed  executed 
in  insolvent  proceedings  was  objected  to  in  an  action  for  eject- 
ment, without  previous  proof  of  the  insolvent  proceedings 
upon  which  it  was  based,  it  was  held  that  the  deed  established 
a  prima  facie  title,  and  that  the  insolvent  proceedings  only 
needed  to  be  shown  in  order  to  give  effect  to  the  deed  given  by 
persons  in  whom  the  title  is  not  vested  and  who  derive  their 
power  to  convey  from  the  statute,  and  the  proceedings  under 
which  they  acted.  Rockwell  v.  Brown,  54  N.  Y.  213.  Not  so, 
however,  where  the  insolvent  proceedings  are  v^oid.  Rockzvcll  v. 
McGovern,6g  N.  Y.  299,  distinguishing  Rockzvcll  v.  Brown,  snpra. 
The  ofificer  is  not  bound  to  wait  for  parties  beyond  the  arrival 
of  the  precise  time  appointed,  though  he  may  do  so  in  his  discre- 
tion. The  proceedings,  however,  should  be  vacated  if  any  trick 
or  artifice  is  practised  by  which  parties  are  prevented  from 
appearing  at  the  precise  time  appointed.  Ex  parte  Haganian, 
2  Hill,  415  ;  Matter  of  Pnlver,  6  Wend.  632  ;  Matter  of  Brad- 
street,  13  Johns.  385.  Due  legal  proof  of  publication  and  service 
of  notice  is  necessary  in  order  to  give  the  ofificer  jurisdiction,  and 
without  such  proof  he  has  no  authority  to  grant  the  discharge  or 
any  of  the  necessary  orders  prior  thereto  ;  an  afifidavit  sworn  to 
before  an  officer  having  no  power  to  take  it  is  insufificient.  Stanton 
V.  Ellis,  16  Barb.  319  ;  Leivis  v.  Page,  8  Abb.  (N.  S.)  200.  Contra, 
Soule  V.  Chase,  i  id.  48,  reversed,  39  N.  Y.  342.  Although  if  the 
ofificer,  without  such  proof,  assumes  to  act  and  grants  a  discharge, 
it  has  been  held  binding,  except  in  a  direct  proceeding  to  review 
the  decision.  Rusher  v.  Sherman,  28  Barb.  406 ;  Stanton  v. 
Ellis,  12  N.  Y.  575.  In  Soule  v.  Chase,  supra,  it  is  held  that 
proof  of  publication  is  not  limited  to  the  affidavit  of  the  parties 
or  his  clerk.  But  see  39  Hun,  504,  supra.  The  creditors  may 
appear  at  the  time  appointed  in  the  order  and  contest  the  right 
of  the  insolvent  to  a  discharge,  but  if,  after  having  been  properly 


446   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 
Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 


served,  they  neglect  to  appear  and  object,  they  will  be  concluded 
by  the  proceedings  in  case  the  officer  has  jurisdiction,  except  as 
to  matters  declared  fatal  by  statute.  People  v.  Stryker,  24  Barb. 
649;  Matter  of  Bradstreet,  13  Johns.  385.  But  it  is  only  creditors 
who  are  recognized  as  such  by  the  insolvent  in  his  schedules  who 
may  appear  and  contest.  All  others,  when  they  come  in  to 
oppose  the  discharge,  must  first  prove  their  claims  as  subsisting 
ones,  otherwise  they  are  not  authorized  to  appear  and  oppose. 
Avery  s  Case,  6  Abb.  144. 

By  "proof  satisfactory  to  the  officer"  before  whom  the  pro- 
ceedings are  had,  is  meant  such  evidence  as  is  necessary  to  con- 
vince him  judicially,  and  not  arbitrarily  or  capriciously.  He  is 
not  to  be  satisfied  by  proof  legally  insufficient,  neither  can  he 
withhold  his  satisfaction  when  proof,  which  the  law  deems 
adequate,  is  presented  to  him.  People  v.  Sutherland,  81  N.  Y.  i. 
Under  the  Revised  Statutes  provision  was  made  for  drawing  a 
jury.  It  will  be  observed  that  no  such  provision  now  exists,  and 
the  proceeding  becomes  an  action  at  issue,  and  is  tried  in  the 
same  manner.  Issues  may  be  settled  for  the  trial.  In  case  the 
officer  has  no  jurisdiction,  appearing  and  participating  in  the 
proceedings  does  not  conclude  creditors.  Grade  v.  Sheldon, 
3  Barb.  232.  Otherwise  if  the  discharge  is  consented  to.  Lee  v. 
Curtiss,  17  Johns  85.  But  if  they  do  not  appear  they  are  con- 
cluded except  as  to  jurisdictional  questio«s.  Af after  of  Brad- 
street,  13  Johns.  385;  Soule  v.  Chase,  39  N.  Y.  342;  People  v. 
Stryker,  24  Barb.  649.  A  creditor  may  examine  into  all  the  facts 
as  to  disposition  of  insolvent's  property.  Cohen's  Case,  10 
Abb.  257. 

Specifications  of  Objections  and  Demand  for  Jury. 

(Title  as  before.) 
To  the  County  Court  of  the  County  of  Ulster  : 

I,  Eliza  Wilson,  one  of  the  creditors  of  the  said  Charles  Ramsey,  do 
hereby  object  to  the  discharge  of  said  Charles  Ramsey  as  an  insol- 
vent debtor,  and  specify  the  following  grounds  of  my  objections  to  such 
discharge : 

1.  That  since  the  making  of  the  schedule  annexed  to  the  petition  he 
has  transferred  property  of  the  value  of  ^2,000  to  his  wife,  without  con- 
sideration therefor,  with  intent  to  defraud  his  creditors. 

2.  That  within  two  years  last  past  he  has,  at  different  times  and 
places,  sold  and  transferred  both  real  and  personal  property  to  creditors 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   447 

Art.  3.     Order  to  Show  Cause  and  Proceedings  thereon. 

in    payment  of  an  antecedent  debt.     And   I   hereby  demand  that  the 
questions  of  fact  arising  hereupon  be  tried  by  a  jury. 

(Date.)  (Signature  of  party  or  attorney.) 

The  insertion  in  the  schedule  of  the  name  of  the  creditor,  with 
a  memorandum  that  his  claim  is  barred  by  limitation,  is  not  an 
admission  that  he  is  a  creditor,  so  as  to  entitle  him  to  appear  and 
oppose  without  proofs.     Avery  s  Case,  6  Abb.  144. 

Objections  to  Discharge  of  Insolvent  Debtor.  (4  App.  Div.  301.) 

COUNTY  COURT— OF  Ulster  County. 


In  the  Matter  of  the  Apphcatjon  of 

Anthony  W.  Dimock, 

An  Insolvent  Debtor,  etc. 


The  Farmers'  Loan  &  Trust  Company,  one  of  the  creditors  of  the 
said  Anthony  W.  Dimock,  appearing  herein  by  Turner,  McCIure  & 
Rolston,  their  attorneys,  opposes  the  discharge  of  the  said  Dimock  from 
his  debts,  and  makes  the  following  specifications  of  its  objections  to  his 
discharge  : 

1.  It  objects  to  the  discharge  of  the  said  Dimock  on  the  ground 
that  said  Dimock,  as  it  is  informed  and  believes,  is  not  a  resident  of 
the  town  of  Denning,  in  said  county  of  Ulster,  or  of  any  other  place  in 
said  county  of  Ulster. 

2.  It  objects  to  the  discharge  of  the  said  Dimock  for  the  reason 
that  there  is  not  annexed  to  said  Dimock's  petition  written  instruments 
executed  by  the  creditors  of  said  Dimock  amounting  to  not  less  than 
two-thirds  of  all  his  debts,  and  that  the  alleged  consents  annexed  to 
said  petition  are  not  properly  executed  and  certified. 

On  information  and  belief,  this  creditor  alleges  that  the  amount  of  the 
indebtedness  to  all  of  the  persons,  firms,  and  corporations  executing 
said  consents,  is  much  less  than  two-thirds  of  the  debts  owed  by  said 
Dimock  to  creditors  residing  within  the  United  States,  and  the  claims 
of  said  consenting  creditors  was  incorrectly  stated  in  said  consents. 

3.  That  this  creditor  objects  to  the  discharge  of  said  Dimock  on 
the  ground  that  the  schedule  attached  to  said  Dimock's  petition  herein, 
as  this  creditor  is  informed  and  believes,  does  not  contain  a  full  and 
true  statement  of  all  his  creditors,  and  does  not  contain  a  statement  of 
the  places  of  residence  of  each  creditor,  and  it  does  not  contain  a  state- 
ment of  the  sum  which  said  Dimock  owed  to  each  creditor  and  the 
nature  of  the  debt  or  demand  arising  on  written  security,  on  account,  or 
otherwise,  and  does  not  contain  a  statement  of  the  true  cause  and  con- 
sideration of  said  Dimock's  indebtedness  to  each  creditor  and  the  place 
where  the  indebtedness  accrued  ;  and  it  does  not  contain  a  statement  of 
all  existing  judgments,  mortgages,  collaterals,  or  other  securities  for  the 
payment  of  the  debts  of  the  said  Dimock,  and  does  not  contain  a  com- 
plete and  true  inventory  of  all  his  property,  in  law  or  in  equity,  and  the 


448   DISCHARGE    OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

incumbrances  existing  thereon,  and  of  the  books,  vouchers,  and  securi- 
ties relating  thereto. 

Wherefore,    this    creditor    prays    that   the    application    of   the    said 
Dimock  to  be  discharged  from  his  debts  be  denied. 

TURNER,  McCLURE  &  ROLSTON, 

Attorneys  for  the  Famiers''  Loan  6-  Trust  Co. 
{Add  verification.^ 


ARTICLE  IV. 

When  Insolvent  Discharged  and  Proceedings  thereon. 

§§  2 1 73-2 1 80. 

§2173.  When  insolvent  cannot  be  discharged. 

In  either  of  the  following  cases  the  petitioner  is  not  entitled  to  a  discharge  : 

1.  Where  it  appears  upon  the  hearing  or  trial  that,  after  making  the  schedule  an- 
nexed to  his  petition,  he  has  collected  a  debt  or  demand,  or  transferred,  absolutely,  con- 
ditionally, or  otherwise,  any  of  his  property  not  exempt  by  law  from  levy  and  sale  by 
virtue  of  an  execution,  and  he  neglects  or  refuses  forthwith  to  pay  over  to  the  clerk 
the  full  amount  of  all  debts  and  demands  so  collected,  and  the  full  value  of  all  prop- 
erty so  transferred,  except  so  much  of  the  money,  and  of  the  value  of  the  property,  as 
appears  to  have  been  necessarily  expended  by  him  for  the  support  of  himself  or  his 
family. 

2.  Where  it  appears  in  like  manner  that  the  petitioner,  within  two  years  before  pre- 
senting the  petition,  has,  in  contemplation  of  his  becoming  insolvent,  or  of  his  peti- 
tioning for  his  discharge,  or  knowing  of  his  insolvency,  made  an  assignment,  sale, 
or  transfer,  either  absolute  or  conditional,  of  any  of  his  property,  or  of  any  interest 
therein,  or  confessed  a  judgment,  or  given  any  security,  with  a  view  of  giving  a  prefer- 
ence to  a  creditor  for  an  antecedent  debt. 

Sections  23  and  24,  R.  S.,  am'd  ;  L.  1854,  ch.  147. 

§  2174.  When  assignment  to  be  directed. 

An  order,  directing  the  execution  of  an  assignment,  must  be  made  by  the  court,  where 
it  appears  by  the  verdict  of  the  jury;  or,  if  a  jury  has  not  been  demanded,  or  the 
jurors  have  been  discharged  by  reason  of  their  inability  to  agree,  where  it  satisfactorily 
appears  to  the  court,  as  follows  : 

1.  That  the  petitioner  is  justly  and  truly  indebted  to  the  consenting  creditors,  in 
sums  which  amount,  in  the  aggregate,  to  two-thirds  of  all  the  debts,  which  the  peti- 
tioner owed  at  the  time  of  presenting  his  petition  to  creditors  residing  within  the 
United  States. 

2.  That  he  has  honestly  and  fairly  given  a  true  account  of  his  property. 

3.  That  he  has  in  all  things  conformed  to  the  matters  required  of  him  by  this 
article. 

Id.  §§  25  and  26,  am'd. 

§2175.  Assignment;  contents,  and  to  whom  made. 

The  order  must  designate  one  or  more  trustees,  residents  of  the  State ;  and  must 
direct  the  petitioner  to  execute,  to  him  or  them,  an  assignment  of  all  his  property,  at 
law,  or  in  equity,  in  possession,  reversion,  or  remainder,  excepting  only  so  much  thereof 
as  is  exempt  by  law  from  levy  and  sale  by  virtue  of  an  execution.     The  assignment 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   449 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

must  be  acknowledged  or  proved,  and  certified,  in  like  manner  as  a  deed  to  be  recorded 
in  the  county,  and  must  be  recorded  in  the  clerk's  office  of  the  county.  Where  it 
appears,  from  the  schedule,  or  otherwise,  that  real  property  will  pass  thereby,  it  must 
be  also  recorded  as  a  deed,  in  the  proper  office  for  recording  deeds  of  each  county 
where  the  real  property  is  situated. 

Id.  §  25,  in  part;  also,  §  20,  art.  7,  R.  S. 

§2176.  Id.;  trustees,  how  designated. 

The  trustee  or  trustees  may  be  nominated  by  a  majority  in  amount  of  the  consent- 
ing creditors.  If  no  person  is  so  nominated,  one  or  more  persons  must  be  appointed 
by  the  court  for  the  purpose.  The  nomination  may  be  included  in  the  consent,  or 
made  in  a  separate  paper,  or  orally  upon  the  hearing  or  trial,  and  entered  in  the 
minutes. 

Section  27,  R.  S. 

§2177.  Effect  of  assignment. 

The  assignment  vests  in  the  trustee  or  trustees  all  the  petitioner's  interest,  legal  or  equi- 
table, at  the  time  of  its  execution,  in  any  real  or  personal  property,  not  e.tempt  by  law 
from  levy  and  sale  by  virtue  of  an  execution  ;  and  any  contingent  interest  which  may 
vest  within  three  years  thereafter.  When  a  contingent  interest  so  vests,  it  passes  to  the 
trustees,  in  the  same  manner  as  it  would  have  vested  in  the  petitioner  if  he  had  not 
made  an  assignment. 

Id.  §  28. 

2178.  When  discharge  to  be  granted. 

Upon  the  production  by  the  petitioner  of  a  certificate  of  the  trustee  or  trustees,  duly 
acknowledged  or  proved,  and  certified,  in  like  manner  as  a  deed  to  be  recorded  in  the 
county,  to  the  effect  that  the  insolvent  has  assigned  for  the  benefit  of  all  his  creditors, 
all  his  property  so  directed  to  be  assigned,  and  all  the  books,  vouchers,  and  papers 
relating  thereto,  and  that  he  has  delivered  so  much  thereof  as  is  capable  of  delivery ; 
and  also  of  a  certificate  of  the  county  clerk,  that  the  assignment  has  been  duly  recorded 
in  his  office ;  the  court  must  grant  to  the  insolvent  a  discharge  from  his  debts,  which 
has  the  effect  declared  in  the  following  sections  of  this  article. 

Id.  §  29. 

§  2179.  Proceedings  where  trustee  refuses  to  give  certificate, 
etc. 

If  a  trustee  refuses  or  neglects,  upon  payment  or  tender  by  the  petitioner  of  the 
expense  of  so  doing,  to  execute  or  acknowledge  a  certificate,  as  prescribed  in  the  last 
section,  or  to  cause  the  assignment  to  be  recorded  as  therein  prescribed,  the  court, 
upon  proof  by  affidavit  of  the  facts,  must  make  an  order  requiring  the  trustee  to 
show  cause,  at  a  time  and  place  therein  specified,  why  the  petitioner  should  not  be 
discharged,  notwithstanding  his  neglect  or  refusal ;  and  why  the  trustee's  appoint- 
ment should  not  be  revoked. 

Sec.  23,  art.  7,  R.  S. 

§  2180.  The  same. 

If,  upon  the  return  of  the  order,  it  appears  that  the  assignment  has  been  duly  exe- 
cuted, and  that  the  petitioner  has  duly  delivered  all  his  property  directed  to  be 
assigned,  and  all  the  books,  vouchers,  and  papers  relating  thereto,  which  are  capable 
of  delivery,  the  court  may,  either 

1.  Grant  a  discharge  of  the  petitioner,  notwithstanding  the  neglect  or  refusal  of  the 
trustee  ;  or 

2.  Make  an  order  revoking  the  appointment  of  the  trustee.     Upon  the  entry  of  such. 

29. 


4SO    DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS    DEBTS. 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

an  order  the  powers  of  the  trustee  and  his  interest  in  the  assigned  property  cease.  If 
there  is  no  other  trustee  the  court  must,  by  the  same  or  another  order,  appoint  one  or 
more  new  trustees.  Such  an  appointment  has  the  same  effect  as  if  the  person  or  per- 
sons so  appouited  were  named  as  trustees  in  the  original  assignment. 

An  assignment  of  all  the  debtor's  property  to  trustees  for  the 
payment  of  his  debts  is,  against  the  debtor,  conclusive  evidence 
of  his  insolvency  at  the  time  of  its  execution,  and  such  an  assign- 
ment, giving  preference  to  some  creditors  in  the  payment  of  their 
demands,  is  a  bar  to  the  discharge  of  the  debtor  from  his  debts 
which  existed  when  the  assignment  was  made.  Morewood  v 
Ho/Iistcr,  6  N.  Y.  309.  And  so  also  the  debtor  will  be  prevented 
from  obtaining  his  discharge  under  the  statute  where,  in  contem- 
plation of  applying  for  such  a  discharge,  he  confesses  judgment 
on  which  his  property  is  sold,  although  it  be  confessed  to  a  trustee 
for  the  benefit  of  all  his  creditors  without  preference,  the  judgment 
and  sale  under  it  being  considered  a  fraud  under  the  statute.  Mat- 
ter of  Hurst,  7  Wend.  239.  Such  assignments  will,  it  seems,  not 
have  the  effect  to  render  the  discharge  invalid,  but  it  is  cause  only 
for  defeating  the  insolvent's  application  on  the  hearing  before  the 
officer,  or  if  the  discharge  is  granted  notwithstanding  the  objection 
of  reversing  the  proceedings  on  direct  review.  Strykerv.  Stryker, 
24  id.  649  ;  Rusher  v.  Sherman,  28  id.  416 ;  Matter  of  Hurst,  7  Wend. 
240 ;  Hayden  v.  Palmer,  24  id.  364.  The  general  principle  as  to 
when  an  insolvent  or  imprisoned  debtor  can  obtain  his  discharge 
in  different  proceedings  are  laid  down  as  follows :  A  discharge 
will  not  be  denied  on  the  ground  that  the  petitioner's  firm  has 
made  a  fraudulent  disposition  of  his  property,  unless  it  is  shown 
affirmatively  that  he  participated  therein.  Ex  parte  Benson,  60 
How.  314.  To  bar  a  discharge  some  fraudulent  act  must  be 
shown  committed  after  the  liability  to  the  opposing  creditor  was 
incurred.  Ex  parte  Pearce,  29  Hun,  270.  The  fraud  which  will 
bar  a  discharge  under  the  statute  is  one  perpetrated  in  the  pro- 
ceeding, not  one  in  the  creation  of  the  debt.  Develin  v.  Cooper, 
84  N.  Y.  410.  Where  the  schedule  annexed  to  the  petition  shows 
the  absence  of  jurisdiction  upon  its  face  the  discharge  is  void. 
Morrow  V,  Freemaji,  61  N.  Y.  515.  Where,  upon  an  application 
made  by  an  insolvent  debtor  for  a  discharge,  it  appears  that  a 
similar  application  has  already  been  made  to  one  of  the  judges 
of  the  Court  of  Common  Pleas  of  the  city  of  New  York,  and  hav- 
ing been  fully  heard  has  been  decided  against  him  on  the  merits, 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   45 1 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

held,  that  the  matter  should  be  regarded  as  res  adjiidicata,  and 
the  application  denied.  Matter  of  Roberts,  \0  Www,  2i^'i^,  reversed 
on  another  point,  70  N.  Y.  5.  An  application  for  a  discharge 
should  not  be  denied  merely  because  the  debtor  has  inadvertently 
omitted  some  property  from  his  schedule,  but  if  on  his  examina- 
tion he  remembers  such  property  the  court  should  allow  him  to 
amend  his  petition  by  inserting  it,  if  satisfied  that  the  omission 
was  not  intentional  or  fraudulent.  Matter  of  Rosenberg,  10  Abb. 
(N.  S.)  450.  As  to  what  facts  throw  suspicion  upon  the  good 
faith  and  honesty  of  the  proceedings  of  an  insolvent  seeking  a 
discharge  under  this  act,  see  Cohen  s  Case,  10  Abb.  257.  It  was 
held,  upon  an  application  for  his  discharge  by  an  imprisoned 
debtor,  under  part  2,  chapter  5,  title  i,  Article  VI.,  of  the  Revised 
Statutes,  that  he  was  not  entitled  to  such  discharge,  where  he 
has  disposed  of  his  property  with  intent  to  defraud  the  creditor 
at  whose  suit  he  was  imprisoned  ;  also,  that  it  was  not  necessary 
to  show  that  the  fraudulent  disposition  of  his  property  by  the 
debtor  was  made  by  him  with  a  view  to  instituting  proceedings 
for  discharge.  It  seems,  however,  that  to  prevent  a  discharge 
existing  creditors  must  have  been  defrauded,  and  not  those  whose 
claims  have  been  paid  or  have  ceased  to  exist.  A  creditor  can- 
not contest  the  discharge,  who  is  in  no  way  injured  or  defrauded. 
Matter  of  Brady,  69  N.  Y.  217.  It  seems  that  an  assignment 
two  years  before  the  proceedings  for  discharge  as  an  insolvent  is 
not  within  the  condemnation  of  subdivision  2,  §  2173.  Matter 
of  Dinimock,  4  App.  Div.  310. 

When  an  order  for  assignment  has  been  made  the  officer 
making  it  cannot  afterward  vacate  it,  unless  there  has  been  sur- 
prise on  the  opposing  creditors,  or  they  have  been  misled  by  the 
opposite  party.     Matter  of  Bradstreet,  13  Johns.  385. 

Order  Dismissing  Petition  for   Discharge.    (4  App.  Div.  301.) 

At  a  term  of  the  county  court  of  Ulster  County,  held  at  the  city  of 
Kingston,  on  the  5th  day  of  April,  1895  : 

Present: — Hon.  A.  T.  Clearwater,  Coim/v fud^e. 

. ^' 

In  the  Matter  of  the  AppHcation  of 
Anthony  W.  Dimock. 


Anthony  W.   Dimock,  an  insolvent  debtor,  having  heretofore  filed 
his    petition    in  this  court,  verified  the  2d  day  of  October,  1893  ;  and 


452    DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.  4.     When   Insolvent  Discharged  and  Proceedings  thereon. 


an  order  having  thereupon  been  made  dated  October  2,  1893,  direct- 
ing that  all  the  creditors  of  the  said  Anthony  W.  Dimock  show 
cause  at  a  term  of  this  court  to  be  held  at  the  county  judge's  chambers, 
in  the  city  of  Kingston,  on  the  15th  day  of  November,  1893,  at  11 
o'clock  in  the  forenoon  of  that  day,  why  an  assignment  of  the  said 
insolvent  property  should  not  be  made,  and  he  be  thereupon  dis- 
charged from  his  debts,  as  described  in  Article  I.  of  title  I.  of  chap- 
ter 17  of  the  Code  of  Civil  Procedure. 

And  said  matter  having  come  on  to  be  heard  on  the  said  15th  day 
of  November,  1893,  at  11  o'clock  in  the  forenoon  of  that  day,  and  the 
said  Anthony  W.  Uimock,  petitioner,  having  appeared  on  said  day 
by  ,  his  counsel,  and ,  Esq.,  having  appeared  as  coun- 
sel for  certain  objecting  creditors,  and  the  matter  having  been  ad- 
journed to  the  23d  day  of  November,  1893,  and  the  matter  then 
having  come  on  to  be  heard  before  said  county  judge,  and  the  said 

petitioner  having  appeared  by ,  Esq.,  his  counsel,  and , 

^    and being  creditors   objecting   having  appeared  by 

,  their  counsels,  and  the  said  objecting  creditors  having  made 


certain  preliminary  objections  to  the  proceedings,  which  were  over- 
ruled, and  the  Farmers'  Loan  &  Trust  Company,  having  thereupon 
filed  notice  of  appearance  by  Turner,  McClure  &  Rolston,  its  attor- 
neys, and  having  filed  specifications  of  objection  to  the  discharge 
of  said  Anthony  W.  Dimock,  verified  November  loth,  1893,  (^^^^ 
similar  statement  for  all  other  objecting  creditors),  and  the  issues 
raised  by  the  several  specifications  of  objection  having  been  duly 
tried  before   the  court,  and  due  deliberation  had  thereon,  and  after 

hearing ,  of  counsel  for  the  petitioner,  and ,  ,  and 

,  of  counsel  for  the  objecting  creditors. 

On  motion  of ,  attorneys  for  Farmers'  Loan  &  Trust  Com- 
pany and  other  objecting  creditors,  it  is 

Ordered,  that  the  said  petition  of  Anthony  W.  Dimock  be,  and 
the  same  is  hereby  dismissed  on  the  merits  with  costs  to  the  Far- 
mers' Loan  &  Trust  Company  and  others  represented  by  Messrs. 
Turner,  McClure  &  Rolston,  and  with  costs  to  the  United  States 
National  Bank,  an  objecting  creditor. 

A.  T.  CLEARWATER, 

Ulster  County  Judge. 

A  true  copy  of  the  whole  thereof  of  order  entered  this  5th  day  of 
April,  1895,  in  my  office. 

Given  under  my  hand  and  seal  of  this  court,  this  5th  day  of 
April,  1895.  GEORGE  S.  SLEIGHT, 

Clerk. 


DISCHARGE    OF   INSOLVENT    DEBTOR    FROM    HIS    DEBTS.    453 
Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

Order  for  an  Assignment. 

At  a  Special  Term  of  the  county  court,  held  at  the  chambers  of  the 
judge  thereof,  in  the  city  of  Kingston,  Ulster  County,  on  the  17th 
day  of  March,  1883  : 

Present  : — Hon.  William  Lawton  ,  County  Judge  of  Ulster  County. 


In  the  Matter  of  the  Apphcation  of  Charles 
Ramsey,  an  Insolvent  Debtor,  for  his  dis- 
charge from  his  debts. 

It  appearing  to  the  court  from  tlie  proofs  of  the  respective  parties 
to  this  proceeding  that  the  petitioner.  Charles  Ramsey,  is  jvistly  and 
truly  indebted  to  the  consenting  creditors  in  sums  which  amount  in 
the  aggregate  to  two-thirds  of  all  the  debts  which  the  said  petitioner 
owed  at  the  time  of  presenting  his  petition  in  this  proceeding  to  cred- 
itors residing  within  the  United  States  :  that  said  petitioner  has  hon- 
estly and  fairly  given  a  true  account  of  his  property,  and  has  in  all 
things  conformed  to  the  matters  required  of  hmi  by  Article  I.  of  title 
I  of  chapter  17  of  the  Code  of  Civil  Procedure,  it  is  now,  on  read- 
ing all  the  papers  and  proceedings  herein  and  the  proofs  taken  herein, 
and  on  proof  of  due  publication  and  service  of  the  order  requiring 
creditors  to  show  cause,  granted  therein  on  the  29th  day  of  Septem- 
ber, 1882,  and  on  motion  of  A.  W.  Cooper,  of  counsel  for  the  peti- 
tioner, and  no  one  opposing, 

Ordered,  that  the  petitioner,  Charles  Ramsey,  execute  to  Anthony 
Benson,  of  the  said  city  of  Kingston,  as  trustee,  who  is  hereby 
designated  as  a  trustee  for  that  purpose,  an  assignment  of  all  his, 
said  petitioner's,  property  at  law  or  in  equity,  in  possession,  reversion, 
or  remainder,  excepting  only  so  much  thereof  as  is  exempt  by  law 
from  levy  and  sale  by  execution.  WILLIAM  LAWTON, 

County  Judge  0/  Ulster  County. 

Insolvent's   Assignment. 

ULSTER  COUNTY  COURT. 


In  the  Matter  of  the  Apphcation  of  Charles 
Ramsey,  an  Insolvent  Debtor,  for  his  dis- 
charge from  his  debts. 


Know  all  men  by  these  presents,  that  I,  Charles  Ramsey,  an  insol- 
vent delitor,  did,  in  conjunction  with  so  many  of  my  creditors  resid- 
ing within  the  United  States  whose  debts  in  good  faith  amount  to 
two-thirds  of  all  the  debts  owing  by  me  to  creditors  residing  within 
the  United  States,  present  a  petition  to  the  county  court  of  Ulster 
County,  praying  for  relief,  pursuant  to  the  provisions  of  the  statute 
authorizing  an  insolvent  debtor  to  be  discharged  from  his  debts, 
whereon  the  said  county  court  ordered  notice  to  be  given  to  all  my 
creditors  to  show  cause,  if  any  they  had.  before  it,  at  a  certain  day 
and  place,  why  the  prayer  of  the  said  petition  should  not  be  granted. 


454   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

which  notice  was  duly  published  and  served  as  required  by  law,  and 
no  g-ood  cause  appearing  to  the  contrary,  and  the  said  county  court 
being-  satisfied  that  I  have  in  all  things  conformed  to  those  matters 
required  by  the  said  statute,  has  directed  an  assignment  of  all  my 
estate  to  be  made  by  me  for  the  benefit  of  all  my  creditors  : 

Now,  therefore,  know  ye,  that  in  conformity  to  the  said  direction  I 
have  granted,  leased,  assigned,  and  set  over,  and  by  these  presents 
do  grant,  release,  assign,  and  set  over  unto  Anthony  Benson,  trustee, 
appointed  to  receive  the  same,  all  my  estate,  real  and  personal, 
both  in  law  and  equity,  in  possession,  reversion,  or  remainder,  and 
all  books,  vouchers,  and  securities  relating  thereto,  to  hold  the  same 
unto  the  said  assignee  to  and  for  the  use  of  all  my  creditors,  except 
so  much  thereof  as  is  exempt  by  law  from  levy  and  sale  by  virtue  of 
an  execution. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal,  this 
28th  day  of  March,   1883. 

(Add  acknoivledg7nent.') 

An  assignment  of  all  the  debtor's  estate,  real  and  personal, 
passes  title  to  all  the  lands  which  he  owns  without  further  de- 
scription, and,  therefore,  lands  owned  by  him,  though  not  men- 
tioned in  his  inventory,  pass  by  such  assignment.  Roseboom  v. 
Mosicr,  2  Denio,  61.  Property  held  in  trust  does  not  pass  by  the 
assignment,  and  if  such  property  remains  in  specie,  or  in 
goods  and  notes,  or  other  choses  in  action,  the  cestui  que  trust  is 
entitled  to  the  property,  and  not  the  general  creditors  of  the  in- 
solvent. Though  the  trust  property  is  converted  into  money, 
yet  if  it  is  kept  separate  and  distinct,  so  that  it  can  be  traced  and 
distinguished  from  the  general  mass  of  the  insolvent's  estate,  it 
will  go  on  to  the  cestui  que  tt'ust.  Kip  v.  Bank  of  Neiu  York,  10 
Johns.  63  ;  Kennedy  v.  Strong,  id.  289.  Where  property  has  been 
fraudulently  conveyed  by  an  insolvent  debtor  under  the  statute, 
his  interest  in  the  property  passes  to  the  assignee  for  the  benefit 
of  his  creditors,  although  not  embraced  in  the  inventory.  Ward 
V.  Van  Bokkelen,  2  Paige,  289.  The  assignee  takes  the  property 
subject  to  any  equitable  lien  in  a  third  person.  Waddington  v. 
Vredenburgh,  2  Johns.  Cas.  227.  The  title  to  the  property  of  the 
insolvent  cannot  be  affected  until  it  is  assigned.  Under  the 
statute  the  insolvent  may  at  any  time  terminate  his  proceedings, 
and  is  not  bound  to  complete  them,  and  he  may  sell  the  prop- 
erty, and  although  such  an  act  wotdd  be  a  fraud  upon  the  pro- 
ceedings, the  purchaser  would  obtain  a  good  title  ;  the  creditors 
obtain  no  lien  until  the  discharge,  and  the  debtor  is  not  divested 
of  control   until  that   time.      He   may   make  a  conveyance  if  he 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   455 

Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

sees  fit.  Bailey  v.  Burton,  8  Wend.  339.  It  is  said  a  deed, 
showing  upon  its  face  that  it  is  an  assignment  made  by  an  in- 
solvent to  obtain  his  discharge  under  the  statute  relating  to  volun- 
tary assignments,  is  sufficient  to  support  an  action  of  ejectment 
by  the  assignee,  where  there  is  no  affirmative  evidence  of  any  in- 
validity in  the  insolvency  proceedings.  Rockzvellv.  Brown,  54 
N.Y.  210. 

An  assignment,  purporting  to  be  made  under  the  Two-Thirds 
Act,  is  invalid  as  a  conveyance  of  the  insolvent's  estate,  at  least 
as  against  one  not  a  bona  fide  purchaser  without  notice,  where  the 
preliminary  proceedings  are  void  because  not  in  conformity  to  the 
statute,  so  held  where  petition  was  fatally  defective.  Rockwell  v. 
McGovern,  69  N.  Y.  294.  The  petitioner  must  assign  all  the 
property  he  has  at  the  time  he  is  ordered  to  make  the  assignment, 
and  there  must  be  some  evidence  of  a  delivery  to  the  assignee. 
BortJnvick  v.  Howe,  27  Hun,  505. 

A  discharge  with  the  assent  of  two-thirds  of  the  creditors  is 
void  unless  the  debtor's  affidavit  conforms  to  the  statute,  and  will 
not  protect  his  future  acquisitions.  Its  invalidity  may  be  set  up 
by  a  future  execution  creditor.  Hale  v.  Sweet,  40  N.  Y.  97.  In 
order  to  make  the  discharge  conclusive  it  is  necessary  that  the  of- 
ficer have  jurisdiction,  and  there  must,  for  that  purpose,  be  a  peti- 
tion, signed  by  the  debtor  and  by  two-thirds  of  his  creditors  re- 
siding within  the  United  States,  the  affidavit  of  the  petitioning 
creditors  taken  before  an  officer  authorized  to  take  affidavits  to  be 
used  in  courts  of  record,  to  the  amount,  nature,  and  consideration 
of  the  debt,  and  that  the  creditor  has  received  no  consideration  to 
become  a  petitioner ;  a  full  and  true  account  of  the  creditors,  the 
amounts  due,  the  consideration,  a  statement  of  any  security,  and  a 
full  inventory,  an  affidavit  by  the  debtor  and  before  the  court,  of 
the  correctness  of  his  petition  and  proof  of  residence  within  the 
county  where  proceedings  are  had.  Rusher  v.  Sherman,  28  Barb. 
416.  The  recitals  of  the  discharge  are  conclusive  evidence  of  all 
proceedings  except  matters  going  to  the  jurisdiction,  and  the  record 
need  not  be  produced.  Barber  v.  IVinsloza,  12  Wend.  102  ;  Jenks 
V.  Stebbins,  11  Johns.  224;  Lester  v.  Thompson,  i  id.  300;  Stan- 
ton Y.Ellis,  12  N.  Y.  575;  Bully  more  v.  Cooper,  46  id.  236; 
Develin  v.  Cooper,  84  id.  410;  although  it  is  not  the  only  evidence 
of  the  proceedings.  RicJimond  v.  Praim,  24  Hun,  578.  The 
discharge  \s  prima  fa eie  evidence  as  to  matters  of  jurisdiction. 


456   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 
Art.  4.     When  Insolvent  Discharged  and  Proceedings  thereon. 

Trustees'  Certificate. 

ULSTER  COUNTY  COURT. 


In  the  Matter  of  the  Application  of  Charles 
Ramsey,  an  Insolvent  Debtor,  for  his  dis- 
charge from  his  debts. 


I,  Anthony  Benson,  of  the  city  of  Kingston,  Ulster  County,  New 
York,  hereby  certify  that  Charles  Ramsey,  an  insolvent  debtor,  has 
this  day  granted,  conveyed,  assigned,  and  delivered  to  me,  for  the 
use  and  benefit  of  all  his  creditors,  all  his  estate,  real  and  personal, 
both  in  law  and  equity,  in  possession,  reversion,  or  remamder,  and 
all  books,  vouchers,  and  securities  relating  to  the  same,  except  so 
much  thereof  as  is  exempt  from  levy  and  sale  by  virtue  of  aii  exe- 
cution, and  has  delivered  so  much  thereof  as  is  capable  of  delivery. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
28th  day  of  March,  1883.  (Signature.) 

Certificate  of  Record  by  Clerk. 

State  of  New  York, 


County  of  Ulster,  [ 
I,  Jacob  D.  Wurts,  clerk  of  the  county  of  Ulster,  do  hereby  certify 
that  an  assignment  of  all  the  estate,  real  and  personal,  both  in  law 
and  equity,  in  possession,  reversion  and  remainder,  and  all  books, 
vouchers  and  securities  relatmg  thereto,  except  so  much  thereof  as 
is  exempt  from  levy  and  sale  by  virtue  of  an  execution  of  Charles 
Ramsey,  an  insolvent  debtor,  made  by  the  said  Charles  Ramsey  to 
Anthony  Benson  to  and  for  the  use  of  the  creditors  of  the  said 
Charles  Ramsey,  and  dated  the  28th  day  of  March,  1883,  was  duly 
recorded  in  the  clerk's  office  of  said  county  on  the  28th  day  of 
March,  1883. 

In  witness  whereof  I  have  hereunto  subscribed  my  name  and 
Tl.  s.l      affixed  my  official  seal,  this  28th  day  of  March,  1883. 

JACOB  D.  WURTS, 

Clerk. 

Discharge. 

At  a  term  of  the  Ulster  County  court,  held  in  and  for  the  county  of 
Ulster,  at  the  chambers  of  the  county  judge,  in  the  city  of  King- 
ston, on  the  31st  day  of  March,  1883  : 

Present  : — Hon.  William  Lawton,  County  Judge. 

In  the  Matter  of  the  Application  of  Charles 
Ramsey,  an  Insolvent  Debtor,  for  his  dis- 
charge from  his  debts. 


To  all  to  whom  these  presents  shall  come  or  may  concern  : 

Whereas,  Charles  Ramsey,    an  insolvent  debtor,  residing  within 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   457 

Art.  5.     Discharge  and  its  Effect. 

the  city  of  Kingston,  said  county  of  Ulster,  did,  in  conjunction  with 
so  many  of  his  creditors,  residing  within  the  United  States,  as  have 
debts  in  good  faith  owing  to  them  by  the  said  insolvent,  amounting 
to  at  least  two-thirds  of  all  the  debts  owing  by  him  to  creditors 
within  the  United  States,  present  a  petition  to  the  Ulster  County 
court,  on  the  29th  day  of  September,  1882,  praying  that  the  estate 
of  the  said  insolvent  might  be  assigned  for  the  benefit  of  his  creditors 
and  he  be  discharged  from  his  debts,  pursuant  to  the  provisions  of 
the  statute  authorizing  an  nisolvent  debtor  to  be  discharged  from  his 
debts,  to  which  petition  was  annexed  the  schedule  required  by  law, 
duly  verified,  with  the  proper  consents  of  said  creditors,  accom- 
panied by  the  affidavits  required  by  law.  Whereupon  the  said  court 
ordered  notice  to  be  given,  as  required  by  law,  to  all  the  creditors  of 
the  said  insolvent,  to  show  cause,  if  any  they  had,  before  it,  at  a 
certain  time  and  place,  why  an  assignment  of  the  said  insolvent's- 
estate  should  not  be  made  and  he  be  discharged  from  his  debts ; 
proof  of  the  service  whereof  on  the  creditors  of  said  insolvent,  as  re- 
quired by  law,  and  of  the  publication  whereof  has  been  duly  made  ; 
and 

Whereas,  It  satisfactorily  appearing  to  the  court  that  the  proceed- 
ings on  the  part  of  the  creditors  are  just  and  fair,  and  that  the  said 
insolvent  has  conformed  in  all  things  to  those  matters  required  of 
him  by  law,  an  order  was  made  by  said  court  directing  an  assign- 
ment to  be  made  by  the  said  insolvent  of  all  his  estate,  real  and  per- 
sonal, both  in  law  and  equity,  in  possession,  reversion,  or  remainder, 
except  so  much  thereof  as  is  exempt  from  levy  and  sale  by  virtue  of 
an  execution  to  Anthony  Benson,  trustee,  therein  designated  to  re- 
ceive the  same  ;  and  the  said  insolvent  having,  on  the  28th  day  of 
March,  1883,  made  such  assignment,  and  produced  a  certificate  there- 
of, executed  by  the  said  trustee  and  duly  proved,  and  also  a  certifi- 
cate of  the  clerk  of  said  county  of  Ulster  that  such  assignment  is 
duly  recorded  in  his  office  : 

Now,  therefore,  know  ye,  that  by  virtue  of  the  power  and  authority 
in  said  court  vested,  the  said  insolvent  is  hereby  discharged  from  all 
his  debts  and  from  imprisonment  therefor,  pursuant  to  the  provisions 
of  the  said  statute. 

Witness,  Hon.  William  Lawton,  county  judge  of  Ulster  County, 
[l.  s.  ]       at  his  chambers  in  said  city  of  Kingston,  county  of  Ulster 
and  State  of  New  York,  this  31st  day  of  March,  1883. 

WM.    LAWTON, 
County  Judge  of  Ulster  County. 

JACOB  D.  WURTS, 

Clerk  of  Ulster  County  and  County  Court. 

ARTICLE  V. 

Discharge  and  its  Effect.    §§  2181-2187. 

8  2181.    Discharge,  etc.,  to  be  recorded. 

The  discharge,  and  the  petition,  affidavits,  orders,  schedule  and  other  papers  upon 
which  the  discharge  is  granted,  exclusive  of  the  minutes  of  testimony,  must  be  re- 


458    DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS    DEBTS. 


Art.   5.     Discharge  and  its  Effect. 


.corded  in  the  clerk's  office  of  the  county,  within  three  months  after  the  discharge  is 
granted.  In  default  thereof,  the  discharge  becomes  inoperative,  from  and  after  that 
time.  The  original  discharge,  the  record  thereof,  or  a  transcript  of  the  record  duly 
authenticated,  is  conclusive  evidence  of  the  proceedmgs  and  facts  therem  contained. 
The  other  papers  specified  in  this  section,  the  record  thereof,  or  a  transcript  of  the 
record  duly  authenticated,  are  presumptive  evidence  of  the  proceedings  and  facts 
therein  contained. 

L.  1866,  ch.  116  (6  Edm.  701). 

§  2182.     [Am'd  1883.]    Effect  of  discharge. 

Except  as  prescribed  in  the  next  two  sections,  a  discharge,  granted  as  prescribed  in 
this  article,  exonerates  and  discharges  the  petitioner  from  every  debt,  due  at  the  time 
when  he  executed  his  assignment,  including  a  debt  contracted  before  that  time, 
though  payable  afterwards ;  and  from  every  liability  incurred  by  him,  by  making  or 
indorsing  a  promissory  note,  or  by  accepting,  drawing,  or  indorsing  a  bill  of  ex- 
change, before  the  execution  of  his  assignment ;  or  incurred  by  him,  in  consequence 
of  the  paymenti  by  any  party  to  such  a  note  or  bill,  of  the  whole  or  any  part  of  the 
money  secured  thereby,  whether  the  payment  is  made  before  or  after  the  execution  of 
the  assignment.  At  any  time  after  one  year  has  elapsed,  since  the  recording  of  the 
discharge,  and  the  petition,  affidavits,  orders,  schedule,  and  other  papers  upon  which 
the  discharge  was  granted,  as  prescribed  in  section  twenty-one  hundred  and  eighty-one 
-of  this  act,  the  petitioner  may  apply,  upon  proof  of  his  discharge,  to  the  court  in  which 
a  judgment  shall  have  been  rendered  against  him,  for  an  order  directing  the  judgment 
to  be  cancelled  and  discharged  of  record.  If  it  appears  that  he  has  been  discharged 
from  the  payment  of  that  judgment,  an  order  must  be  made  accordingly,  and  there- 
upon the  clerk  must  cancel  and  discharge  the  docket  thereof,  as  if  the  proper  satisfac- 
tion-piece of  the  judgment  was  filed.  Notice  of  the  application,  accompanied  with 
■  copies  of  the  papers  upon  which  it  is  made,  must  be  given  to  the  judgment  creditor, 
unless  his  written  consent  to  the  granting  of  the  order  was  satisfactory  proof  ^f  the 
execution  thereof,  and  if  he  is  not  the  party  in  whose  favor  the  judgment  was  ren- 
dered, that  hti  is  the  owner  thereof,  is  presented  to  the  court  upon  the  application. 

§  2183.  Id. ;  exception  as  to  foreign  contracts  or  creditors. 

In  either  of  the  following  cases,  such  a  discharge  does  not  affect  a  debt  or  liabiUty, 
founded  upon  a  contract,  unless  it  was  owing,  when  the  petition  was  presented,  to  a 
resident  of  the  State  ;  or  the  creditor  has  executed  a  consent  to  the  discharge  ;  or  has 
appeared  in  the  proceedings  ;  or  has  received  a  dividend  from  the  trustee  : 

1.  Where  the  contract  was  made  with  a  person  not  a  resident  of  the  State. 

2.  Where  it  was  made  and  to  be  performed  without  the  State. 

3.  Where  the  creditor  was  not,  at  the  time  of  the  discharge,  a  resident  of  the  State. 
See  §§  30  and  31,  art.  3,  R.  S. 

g  2184.  Id. ;  as  to  debts,  etc.,  to  the  United  States  and  the  State. 

Such  a  discharge  does  not  affect : 

1.  A  debt  or  duty  to  the  United  States,  or 

2.  A  debt  or  duty  to  the  State,  for  taxes  or  for  money  received  or  collected  by  any 
person  as  a  public  officer,  or  in  a  fiduciary  capacity,  or  a  cause  of  action  spec  ified  in 
§  1969  of  this  act,  or  a  judgment  recovered  upon  such  a  cause  of  action. 

Except  as  prescribed  in  this  section,  the  discharge  exonerates  the  petitioner  from  a 
debt  or  other  liabiUty  to  the  State,  in  like  manner  and  to  the  same  extent,  as  from  a 
■debt  or  liability  to  an  individual. 

Art.  7,  §§  29  and  30,  R.  S.  am'd ;  L.  1859,  ch.  2. 


DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS   DEBTS.    459 
Art.  5.     Discharge  and  its  Effect. 

g  2183.  Insolvent  to  be  released  from  imprisonment. 

If,  at  the  time  when  the  discharge  is  granted,  the  petitioner  is  under  arrest,  by 
virtue  of  an  execution  against  his  person  issued,  or  an  order  of  arrest  made,  in  an 
action  or  special  proceeding,  founded  upon  a  debt  or  liability  from  which  he  is  dis- 
charged, as  prescribed  in  the  foregoing  sections  of  this  article,  he  must  be  released 
from  the  arrest,  upon  producing  to  the  officer  his  discharge,  or  a  certified  copy  of  the 
record  thereof.  If  the  adverse  party  wishes  to  test  the  validity  of  the  discharge,  he 
may  procure  a  new  order  of  arrest,  or  cause  a  new  execution  to  be  issued,  as  the  case 
requires. 

Art.  3,  §  34,  R.  S. 

§  2186.  Discharge,  when  void. 

A  discharge,  granted  as  prescribed  in  this  article,  is  void,  in  either  of  the  following 
cases  : 

1.  Where  the  petitioner  wilfully  swears  falsely,  in  the  affidavit  annexed  to  his  peti- 
tion or  schedule,  or  upon  his  examination  in  relation  to  any  material  fact,  concerning 
his  property  or  his  debts,  or  to  any  other  material  fact. 

2.  Where,  after  presenting  his  petition,  he  sells,  or  in  any  way  transfers  or  assigns, 
any  of  his  property,  or  collects  any  debt  or  demand  owing  to  him,  and  does  not  give  a 
just  and  true  account  thereof,  upon  the  hearing  or  trial,  and  does  not  pay  the  money 
so  collected,  or  the  value  of  the  property  so  sold,  transferred,  or  assigned,  as  prescribed 
in  this  article. 

3.  Where  he  secretes  any  part  of  his  property,  or  a  book,  voucher,  or  paper  relating 
thereto,  with  intent  to  defraud  his  creditors. 

4.  Where  he  fraudulently  conceals  the  name  of  any  creditor,  or  the  sum  owing  to 
any  creditor,  or  fraudulently  misstates  such  a  sum. 

5.  Where,  in  order  to  obtain  his  discharge,  he  procures  any  person  to  become  a 
consenting  creditor  wilfully,  intentionally,  and  knowingly  for  a  sum  not  due  from  him 
to  that  person  in  good  faith,  or  for  a  sum  greater  than  that  for  which  the  holder  of  a 
demand,  purchased  or  assigned,  is  deemed  a  creditor,  as  prescribed  in  this  article. 

6.  Where  he  pays,  or  consents  to  the  payment  of,  any  portion  of  the  debt  or  demand 
of  a  creditor,  or  grants  or  consents  to  the  granting  of  any  gift  or  reward  to  a  creditor, 
upon  an  express  or  implied  contract,  trust,  or  understanding,  that  the  creditor  so  paid 
or  rewarded  should  be  a  consenting  creditor,  or  should  abstain  or  desist  from  opposing 
the  discharge. 

7.  Where  he  is  guilty  of  any  fraud  whatsoever,  contrary  to  the  true  intent  of  this 
article. 

Art.  3,  §  35,  R.  S.,  am'd. 

§  2287.  Invalidity  may  be  proved  on  motion  to  vacate  order  of 
arrest,  etc. 

Where  a  person,  who  has  been  discharged  as  prescribed  in  this  article,  is  afterwards 
arrested  by  virtue  of  an  order  of  arrest  made,  or  an  execution  issued,  in  an  action 
founded  upon  a  debt  or  liability  from  which  he  is  so  discharged,  the  adverse  party 
may  oppose  his  application  to  be  released  from  the  arrest  by  proof,  by  affidavit,  of  any 
cause  for  avoiding  the  discharge,  for  want  of  jurisdiction,  or  as  specified  in  the  last 
section.     If  such  a  cause  is  established,  the  application  must  be  denied. 

It  was  held  in  Barnes  v.  Gill,  13  Abb.  (N.  S.)  164,  that  the 
omission  to  file  the  papers  leaves  the  discharge  inoperative  until 
they  are  filed,  and  a  levy  made  meanwhile  is  valid,  and  the  right 
vesting  under  it  is  not  affected  by  the  subsequent  filing  of  the 


460   DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS. 


Art.   5.     Discharge  and  its  Effect. 


papers.  The  discharge  is  made  operative  from  the  time  of  fiHng, 
upon  debts  which  were  due  at  or  before  the  filing  of  the  dis- 
charge, and  this  case  was  followed  in  Mills  v.  Hildreth,  5  Hun, 
364.  It  will  be  seen  that  as  to  the  effect  of  subsequent  filing  the 
provisions  of  this  section  differ  from  the  statute  under  which 
these  decisions  are  made.  The  discharge  exonerates  the  insol- 
vent from  all  liabilities  incurred  by  him  by  making  or  indorsing 
any  promissory  note  previous  to  the  execution  of  the  assignment, 
or  incurred  by  him  in  consequence  of  the  payment  by  any  party 
to  such  note  or  bill,  of  the  whole  or  any  part  of  the  money  secured 
thereby,  whether  such  payment  be  made  prior  or  subsequent  to 
the  execution  of  the  assignment  by  such  insolvent.  Ford  v. 
Andrews,  9  Wend.  312.  The  debts  of  the  insolvent  on  contract 
are  discharged  even  though  the  creditor  be  a  non-resident  and 
did  not  unite  in  the  petition  nor  accept  a  dividend,  where  the 
contract  was  made  in  this  State,  or  where  the  contract  was  to  be 
executed  in  this  State,  or  where  the  creditor  was,  at  the  time  of 
the  first  publication  of  notice,  a  resident  of  this  State.  The 
creditor  is  also  bound  in  case  he  united  in  the  petition  or  accepted 
a  dividend,  if  the  proceedings  are  valid,  even  if  a  non-resident. 
Parkinson  v.  Scoville,  19  Wend.  150;  Van  Hook  v.  Whit  lock,  j 
Paige,  373. 

But  where  the  contract  was  to  be  performed  out  of  the  State 
and  the  creditor  is  a  non-resident  and  takes  no  part  in  the  pro- 
ceedings, the  discharge  is  inoperative,  So2ilc  v.  Chase,  39  N.  Y. 
342  ;  Donnelly  v.  Corbett,  3  Seld.  500.  As  between  citizens  of  the 
same  State  the  discharge  is  valid.  But  the  discharge  will  not 
exonerate  the  debtor  from  liability  upon  a  contract  made  in 
another  State  between  parties  not  inhabitants  of  this  State  at 
the  time  the  contract  was  made,  although  previous  to  presenting 
the  petition  they  became  such  inhabitants.  A  discharge  obtained 
in  this  State  is  no  defence  to  an  action  by  a  citizen  of  another 
State  upon  a  note  given  before  the  proceedings  for  a  discharge, 
although  such  note  is  made  payable  and  the  action  is  brought  in 
this  State.  Pratt  v.  Chase,  44  N.  Y.  597.  This  rule  is  applicable, 
though  the  debt  due  is  a  judgniL-nt  which  was  recovered  within 
the  State  where  the  discharge  was  obtaincil.  Lester  v.  Christalar, 
I  Daly,  29.  The  effect  of  the  discharge  upon  negotiable  paper 
is  to  destroy  its  negotiability  :  it  discharges  the  debt  for  which 
the  note  was  given,  the  note  becomes  worthless,  and   the   i)erson 


DISCHARGE    OF    INSOLVENT    DEBTOR    FROM    HIS    DEBTS.   461 


Art.  5.     Discharge  and  its  Effect. 


to  whom  it  is   transferred,  after  the  discharge,  acquires  no  right 
to  maintain  an  action  upon  it.     Dc Puy  v.  Swart z,  3  Wend.  135  ; 
Moore  v.  Vide,  4  id.  420  ;  Ocean  National  Bank  v.  Olcott,  46  N.  Y. 
12.     The  discharge  operates  also  to  discharge  a  previously  exist- 
ing judgment  obtained  against  the  debtor  even    though   judg- 
ment was  obtained  for  a  tort.     It  extinguishes  the  judgment  as 
effectually  as  if  it  had  been   paid   or  released.     Smitli  v.  Bennett, 
17  Wend.  479 :  Luther  v.  Dcyo,  id.  629  ;  Hayden  v.  Palmer,  24  id. 
364;  Deyo  V.  Van  Valkenburgh,  5  Hill,  242.    'But  where  judgment 
was  not  entered  in  such  an  action  before  discharge,  the  discharge 
does  not  protect  the  debtor.       Hodges  v.  Chase,  2   Wend.  248  ; 
Matter  of  Pie,  10  Abb.  409.     If  the  judgment  was,  however,  en- 
tered, after  discharge  on  verdict    in   an  action   on  contract,  the 
discharge  protects  the  debtor.     Baker  v.  Taylor,  i  Cow.  165.     It 
is  said  the  discharge  of  one  of  two  joint    debtors,  before   pay- 
ment by  his  co-debtor,  will  not  affect  the  claim   of  the  co-debtor 
for  contribution  against  the  discharged  debtor  toward   the   pay- 
ment of  the  debt  by  the  other,  made  subsequent  to  the  insol- 
vent   assignment.       Ransom  v.  Keyes,g  Cow.   128;  Ellsworth  v. 
Caldwell,  27  How.  188  ;  Ellszvorth  v.  Caldwell,  48  N.  Y.  680.     It 
was  held,  where  the  creditor  unites  with  one  or  two  joint  debtors 
for  a  discharge,  the  granting  of  the  discharge  releases  the  other 
joint  debtor.     Alger  v.  Raymond,  25    How.  593.     As  to  this,  see 
§  2156.     The  discharge  is  not  conclusive  as  to  the  facts  requisite 
to  give  the  court   jurisdiction.     Stanton  v.  Ellis,   12   N.Y.  575; 
Barber  v.    Winslow,  12  Wend.  102  ;  Hale  v.   Szveet,  40  N.  Y.  97  ; 
Rusher  v.  Sherman,  28  Barb.  416;  People  v.  Stryker,  24  id.  649; 
Salters  v.  Tobias,  3  Paige,  338  ;  Rockwell  v.  Brown,  42   How.  226. 
These  cases  hold  the  recitals  in  the  discharge  are  prima   facie 
evidence    only    of   jurisdictional   facts,  although   conclusive    evi- 
dence as  to  all    facts  and  proceedings  not  jurisdictional.     After 
discharge  has  been  granted,  if  the  officer  has  acquired  jurisdiction, 
it  is  conclusive  in  all  other    proceedings  in  which  it  comes    in 
question,  and  no  objections,  except  such  as  go  to  the  jurisdiction, 
can  be  availed  of  in  a  collateral  proceeding;  the  remedy  is  by 
direct  review  or  by  certiorari.     The  jurisdictional  facts  are  those 
necessary  to  be   stated  in  the    original   papers,  upon   which  the 
order  to  show  cause  is  founded,  and  irregularities  in   subsequent 
proceedings  are  cured  by  discharge  when  attacked  collaterally. 
Stanton  v.  Ellis,  16  Barb.  317 ;  Matter  of  Underwood,  3  Cow.  59, 


462    DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS    DEBTS. 

Art.  5.     Discharge  and  its  Effect. 

12  N.  Y.  and  28  Barb.,  supra.  The  defects  and  omissions  in  a 
discharge  may  be  remedied  by  the  introduction  of  proof  outside 
the  record.  Salters  v.  Tobias,  3  Paige,  338  ;  Rusher  v.  Sherman, 
28  Barb.  416.  It  will  not  be  presumed  that  an  act  required  to 
be  done  was  not  performed  because  the  recital  is  omitted  from 
the  discharge.  Rosevelt  v.  Kellogg,  20  Johns.  211;  Salters  v.  Tobias, 
3  Paige,  338.  To  entitle  an  order  of  discharge  to  be  put  in  evi- 
dence it  is  not  sufificient  that  it  shows  general  jurisdiction  of  the 
subject-matter,  but  that  jurisdiction  of  the  person  and  of  the 
especial  case  was  acquired  by  taking  the  necessary  steps  pre- 
scribed by  statute  to  that  end,  and  if  the  record  fails  in  any  of 
these  particulars  the  fact  must  be  proved  aliunde.  Sellich  v. 
Keeler,  i  State  Rep.  594. 

An  order  cancelling  and  discharging  judgments  as  provided  in 
the  latter  part  of  this  section  will  be  vacated  where  it  was 
granted  without  notice  to  the  owner  of  the  judgment,  and  with- 
out proof  of  his  consent.  Such  owner  of  a  judgment  is  entitled 
to  have  it  vacated  on  merely  showing  want  of  notice,  and  he  is 
not  required  to  show  why  the  discharge  did  not  operate  upon  his 
judgment,  or  to  show  facts  showing  that  the  judgment  should 
not  have  been  cancelled.  Wheeler  v.  Emmeluth,  I2i  N.  Y.  243, 
30  St.  Rep.  920,  12  Supp.  58.  Where  a  motion  is  made  to  dis- 
charge judgments  of  record  pursuant  to  §  2182,  it  is  no  defence 
to  the  cancellation  of  such  judgments  that,  in  the  list  of  credit- 
ors contained  in  the  petitioner's  petition,  the  name  of  a  decedent 
creditor  appeared  instead  of  the  name  of  his  administrator,  where 
there  is  no  evidence  that  the  petitioher  was  aware  of  the  death 
of  the  creditor  and  it  had  recently  happened.  Wheeler  v.  Emme- 
luth, 58  Hun,  370,  afifirmed,  125  N.  Y,  750  ;  compare,  however, 
Starr  V.  Patterson,  27  Abb.  N.  C.  19.  This  section  regulating  the 
effect  of  a  disciiarge  should  be  read  in  connection  with  the  two 
following  sections,  which  make  exceptions  as  to  foreign  contracts 
with  foreign  creditors  or  contracts  to  be  performed  without  the 
State,  or  debts  due  the  United  States,  or  to  the  State  for  taxes. 
The  revisers  held  the  following  propositions  settled,  and  cited 
the  authorities  named  in  their  support,  and  endeavored  to  con- 
form the  section  to  those  principles.  No  better  interpretation 
of  its  meaning  or  citation  of  authorities  bearing  on  the  point 
seems  possible. 

"  Since  the  enactment  of    the  Revised  Statutes  most  of  the 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   463, 


Art.  5.     Discharge  and  its  Effect. 


questions  that  can  arise  upon  the  subject  have  been  authorita- 
tively settled  by  the  decisions  of  the  Supreme  Court  of  the 
United  States,  or  by  the  Court  of  Appeals  of  this  State,  under 
which  it  is  certain  that  the  effect  of  the  discharge  under  the  laws 
of  a  State  is  too  broadly  stated  in  our  present  statute.  It  seems 
settled  : 

"  First.  That,  unless  the  creditor  has  united  in  the  application 
for  the  discharge,  or  has  appeared  in  the  proceedings  in  insol- 
vency, or  has  received  a  dividend  from  the  insolvent  estate 
{Clay  v.  Smith,  3  Pet.  411,)  a  discharge  under  a  State  insolvent 
law  does  not  extinguish  a  debt  which  was  either  contracted  be- 
fore the  passage  of  such  a  \z^n  {Fanners  and  Mechanics'  Bank  v. 
Smith,  6  Wheat.  131  ;  Ogden  v.  Sannders,  12  id.  213)  ;  or 

"(^)  Contracted  with  a  citizen  of  another  State  or  country 
{Ogden  V.  Saunders,  12  Wheat.  213;  Cook  v.  Moffat,  5  How. 
[U.  S.]  295  ;  Soide  v.  Chase,  39  N.  Y.  342  ;  Hicks  v.  Hotchkiss,  7 
Johns.  Ch.  297  ;  Van  Hook  v.  Whitlock,  26  Wend.  43  ;  Donnelly 
V.  Corbett,  7  N.  Y.  500)  ;  or 

"  {c)  Founded  upon  a  contract  made  and  to  be  performed 
without  the  State  {Stiydam  v.  Broadnax,  14  Pet.  6"]  ;  Clark's 
Executors  v.  Van  Riemsdyk,  g  Cranch,  153;  Towne  v.  Smith,  i 
Woodb.  &  M.  115  ;  Byrdv.  Badger,  i  McAll.  263)  ;  or, 

"  {d)  Due  to  a  creditor  who,  at  the  time  of  the  discharge,  is  a 
citizen  of  another  State  or  country.  St  urges  v.  Crownins  hield,  4 
Wheat.  123  ;  Baldzvin  v.  Hale,  i  Wall.  223  ;  Baldwin  v.  Bank  of 
Newberry,  id.  234;   Gilman  v.  Lockwood,  4  id.  409. 

"  Second.  That  it  makes  no  difference,  in  the  application  of  the 
foregoing  principles,  that  the  creditor  resorts  to  the  courts  of  the 
State  in  which  the  discharge  was  granted,  for  the  collection  of 
his  debt.  Donnelly  v.  Corbett,  7  N.  Y.  500  ;  Soule  v.  Chase,  39 
id.  342. 

"  We  have  endeavored  to  conform  the  section  to  the  princi- 
ples of  these  decisions.  It  may  be  doubted  whether  that  section 
is  not,  even  now,  too  broad,  in  subjecting  to  the  operation  of  our 
insolvent  laws  a  contract  between  citizens  of  the  State,  unless  it 
was  both  made  and  to  be  performed  without  the  State.  But 
that  question  is  not  yet  decisively  settled,  and  in  a  doubtful 
case,  it  is  proper  for  us  to  incline  to  the  validity  of  our  present 
statutes,  and  the  jurisdiction  of  our  own  courts." 

The  decree  of  the  court  of  a  sister  State  discharging  a  debtor 


464   DISCHARGE   OF    INSOLVENT   DEBTOR    FROM    HIS   DEBTS. 


Art.   5.     Discharge  and  its  Effect. 


residino-  in   that  State,  is   a   bar   to   an   action  in  this  State  by  a 
creditor,   also   a    resident    of    a   foreign    State,   or  his   assignee. 
Miirpliy  V.  Philbrook,  6  Supp.  543,  57  Super.  Ct.  204.     The  foUow- 
ino- decisions  were  made  under  the  Revised  Statutes  :  If  a  discharge 
is  granted  after  judgment,  as  the  debtor  in  such  case  has  had  no 
opportunity  to  plead  the  discharge,  he  will  be  released  on  motion, 
and  a  perpetual  stay  of  proceedings  granted  as  to  the  judgment. 
The  execution  will  be   set  aside   even    though  the  creditor  may 
impeach  the   judgment   for   fraud,  yet   he   cannot   disregard   the 
discharge  and  issue  execution  and   sustain   it  on   the   ground  of 
fraud,  and  a  levy  will  not  be  allowed  to  be  sustained  as  security 
except  where  facts  were   presented   showing  the   discharge   pre- 
sumptively  fraudulent.     Parkinson  v.   Scoville,   19  Wend.    150; 
Dresser  v.  Shnfcldt,  7  How.  85  ;  Smith  v.  Pell,  20  id.  97 ;  Rich  v. 
Salinger,  11    Abb.  344;  Stezvart  v.  Sohlinger,   14   id,    291,  lO  id. 
258  ;  Russell  &  Hall  v.  Packard,  9   Wend.  431  ;  Reed  v.  Gordon, 
I  Cow.  50  ;  Noble  v.  Johnson,  9  Johns.  259,  i  Caines,  249  ;  Baker 
V.  Taylor,  i  Cow.  165  ;   Cramer  v.  Blank,  3  Sandf.  700.     The  dis- 
charge must  be  pleaded.      Cornell  v.  Dakin,  38  N.  Y.  253.     And 
where  the  defendant   has    been    guilty   of    laches   or    fraud,   or 
neglected  to  plead  when  he  had  the  opportunity,  leave  to  plead 
will  not  be  granted  on  application.     Holyoke  v.  Adams,  59  N.  Y. 
233  ;  Medbury  v.  S%van,  46  id.  200  ;  Barstozu  v.  Hanson,  2  Hun, 
333;  Price  v.  Peters,  15   Abb.  197;  Stezvart  v.   Green,  ii    Paige, 
535  ;    Riidge  v.   Riindle,    i    T.  &   C.   649.     But   if  the  discharge 
comes  too   late  to  be  pleaded,  the   debtor  will   be  relieved  on 
motion.     Dresser  v.   Brooks,    3    Barb.   429  ;  Baker  v.  Judges  of 
Ulster,  4  Johns.  191.     If  the  discharge   is   obtained   after  judg- 
ment the  debtor  should  move   for  perpetual   stay  of   execution. 
Dresser  v.  Shufeldt,  7  How.  85  ;  Mather  v.  Bush,  16  Johns.  233  ; 
Clark  V.  Rozvling,  3  Comst.  216.     The  discharge  will  not,  on  such 
motion,  be  set  aside  on  affidavits.     Deyo  v.  ]^an  Valkenburgh,  5 
Hill,  245  ;  Rich  v.  Salinger,  1 1   Abb.  344.     A  reference  may  be 
ordered  to  test  the  validity  of   the   discharge.     Stewart  v.  Sohl- 
inger, 14  Abb.  291. 

The  cases  of  Rockzvell  v.  Broivn,  54  N.  Y.  210,  and  Rockwell  v. 
McGovern,  69  id.  294,  should  be  considered  together  in  arriving 
at  effect  of  insolvency  proceedings.  They  seem  to  arise  out  of 
the  same  proceeding.  In  the  first  case  it  is  held  that  "a  deed, 
executed  by  a  party  in  whom   title  is  vested,  and  expressing  a 


DISCHARGE   OF   INSOLVENT   DEBTOR   FROM    HIS   DEBTS.   465 

Art.  5.     Discharge  and  its  Effect. 

valuable  consideration,  never  need,  against   him   or  those  claim- 
ing under  him,  or  as  against  a   stranger,  to    be    supported,    by- 
showing  what  other  reasons   beside  the  will   of   the  party  led  to 
its  execution.       Insolvent    and   other   similar   proceedings  only 
need  to  be  shown  in  order  to  give  effect    to   deeds  given  by  per- 
sons in  whom  the  title  is  not  vested,  and  who  derive  their  power 
to  convey  from  the  statute  and    proceedings    under  which  they 
are  acting.     These  principles,  so   obvious   in   their   reason,  have 
been  long  established,  and  have  never  been   held   as  not  in  con- 
formity with  the  statute."     In    the   second  case  it  was  held  that 
the  grant  failed  with  the   other   proceedings,  and   did  not  divest 
the  insolvent  of  his  title  to  his  estate,  citing  Ely  v.  Cooke,  28  N. 
Y.  374.     It  is   further  held  that  the   proceedings,  having  been 
without  jurisdiction,  no  lawful  discharge  of  the  debtor  from  his 
debts  could  be  granted  under  them.     The  purpose  of  the  assign- 
ment failed,  as  also  the  consideration  upon  which  it  was  founded. 
It  will  thus  be  seen  that  the  deed  of  the  assignee  conveys  the 
debtor's   title,  provided  the   proceedings  are  not   attacked  and 
shown  to  be  invalid,  but  that,  in  case  the  proceedings  under  the 
act  are  void,  the  assignment  and  conveyances  under  it  are  inef- 
fectual.     The  statute  is   held   to   be    special  and    strictly    con- 
strued.     Adjudications   involving   the    principle  are   numerous, 
citing  Ondcrdonk  v.   Voor/iees,  36  N.  Y.  358  ;  Bat/y  v.  Burton,  8 
Wend.  339  ;   Games  v.  Stiles,  14   Pet.  322.     In   opinion   of   Rey- 
nolds, J.,  in  54  N.  Y.  210,  supra,  it   is  further  held   that   the  as- 
signee in  the  proceedings  established   a  prima  facie  title  to  the 
premises,  and  it  should  have  been  received   in  evidence.     In  the 
later  case  (69  N.  Y.  294,  supra),  it  is  said  that  this  holding  is  not 
in  conflict  with  the  views  there  set  forth,  as  it  did  not  appear  on 
the  offer  of  the  deed   that   the  proceedings   under  which  it  was 
granted  were  void,  and  it  is  in   the   later  case  laid   down  as  the 
correct  rule  that  the  assignment  cannot   be  regarded  as  valid  as 
a  conveyance  of  the  debtor's  estate  when   the  preliminary  pro- 
ceedings upon  which  it  is  based  are   void.     The  specification   in 
the  statute  that  certain  acts  and  omissions  shall  vitiate  the  dis- 
charge implies  that  the  decision  of  the  judge  is  conclusive  as  to 
others.     The   fact   that   the  true  cause  of   indebtedness  to    the 
principal  debtor  was  not  set  forth  in  the  schedule,  that  the  gen- 
eral ground  of  the  indebtedness  was   omitted,  and   that  no    cer- 
tificate of  the  recording  of  the  assignment  was  presented  to  the 
30 


466   DISCHARGE    OF   I^ISOLVENT   DEBTOR   FROM   HIS   DEBTS. 

Art.  5.     Discharge  and  its  Effect. 

judge,  are  not  errors  for  which  a  discharge  should  be  interfered 
with  on  certiorari.  People  v.  Strykcr,  24  Barb.  649.  The  mere 
omission  of  a  creditor's  name  in  the  schedule,  or  a  misstatement 
of  the  amount  due,  if  not  made  with  a  fraudulent  intent,  will  not 
invalidate  the  discharge.  Small  v.  Graves,  7  Barb.  576.  Where 
the  schedule  shows  on  its  face  that  the  creditors  joining  do  not 
own  two-thirds  of  the  debts  owing  by  the  insolvent  to  creditors 
residing  in  the  United  States,  the  officer  acquires  no  jurisdic- 
tion, and  a  discharge  based  on  the  petition  is  void.  Morrozv  v. 
Freeman,  61  N.  Y.  515.  The  seventh  subdivision  is  construed  in 
Devlin  v.  Cooper,  84  N.  Y.  410,  to  mean  that  the  fraud  that 
renders  a  discharge  void  under  the  statutory  provision  referred 
to  is  one  done  in  the  proceedings  under  the  statute  to  obtain  a 
discharge,  and  not  a  fraud  that  has  gone  before,  and  in  which 
the  making  of  a  debt  was  involved.  Where  the  debtor  omits  to 
insert  the  name  of  a  creditor  in  the  sworn  schedule,  the  dis- 
charge is  void  and  he  is  not  excused  for  such  omission  by  show- 
ing that  he  was  advised  by  his  counsel  that  he  had  a  good  de- 
fence to  the  claim.  Such  an  omission  is  not  cured  by  afterwards 
inserting  the  name  in  the  schedule,  if  it  were  intentionally 
omitted  under  circumstances  indicating  fraud.  Starr  v.  Patter- 
son,2^  Abb.  N.  C.  19;  but  compare  Wheeler  v.  Emmehith,  58 
Hun,  370,  affirmed,  121  N.  Y.  750. 

See  Matter  of  Dimock,  4  App.  Div.  305,  for  facts  which  seem 
to  be  in  violation  of  sub.  5  of  §  2186,  providing  that  the  dis- 
charge is  void  where  the  petitioner  procures  a  person  to  be  a 
consenting  creditor,  and  also  facts  which  seem  to  be  in  viola- 
tion of  sub.  6,  providing  that  the  discharge  is  void  if  the  peti- 
tioner grants  any  gift  or  reward  to  a  creditor  for  becoming  a  con- 
senting creditor.  It  seems  that  one  not  a  creditor,  and  who  has 
no  interest  to  be  affected  by  the  discharge,  cannot  have  a  certiorari 
to  vacate  it.  People  v.  Stryker,  24  Barb.  649.  Objections  other 
than  those  relating  to  the  jurisdiction  cannot,  after  discharge,  be 
raised  collaterally,  but  must  be  reviewed  directly.  Rusher  v. 
Sherman,  28  Barb.  416  ;  People  v.  Schell,  5  Lans.  332  ;  Soiile  v. 
Chase,  39  N.  Y.  342.  The  proceedings  are  not  amendable  as  to 
matters  which  go  to  the  jurisdiction.  Small  w.  Wheaton,  2  Abb. 
175.  But  as  to  other  matters  an  amendment  may  be  allowed, 
as,  for  instance,  that  the  schedule  did  not  show  the  consideration 
for  debts  owing  by  the  insolvent.     Matter  of  Hurst,    7  Wend. 


DISCHARGE   OF   INSOLVENT   DEBTOR   P^ROM    HIS   DEBTS.   467 
Art.  5.     Discharge  and  its  Effect. 


239  ;  Matter  of  Rosenbiirg,  10  Abb.  (N.  S.)  450 ;  People  v.  Stryker, 
24  Barb.  649  ;  Soule  v.  Chase,  i  Abb.  (N.  S.)  48  ;  Stanton  v.  Ellis, 
16  Barb.  319;  Brodie  v.  Stephens,  2  Johns.  289;  Morewood  v. 
Hollistcr,  6  N.  Y.  309.  The  remedy,  by  way  of  review,  was  for- 
merly by  writ  of  certiorari  under  the  statute,  on  allowance  by  a 
justice  of  the  Supreme  Court  ;  under  it  the  court  was  not  limited 
in  the  examination  to  the  questions  of  jurisdiction  of  the  officer 
and  the  regularity  of  the  proceeding,  but  might  examine  and 
correct  any  erroneous  decision  of  the  officers  upon  a  question  of 
law.  Morewood  v.  Hollister,  6  N.  Y.  309.  This  provision  of  the 
statute  was  repealed,  and  not  re-enacted  in  the  Code,  and  under 
the  provisions  of  §  2 121,  with  reference  to  certiorari,  the  writ 
cannot  now  issue  to  review  the  determination  of  a  court  in  a 
special  proceeding.  The  remedy  is,  therefore,  by  appeal,  which 
goes  to  the  General  Term  as  from  other  adjudications  in  special 
proceedings. 


CHAPTER  X. 

EXEMPTION  FROM    ARREST  OR    DISCHARGE    FROM    IM- 
PRISONMENT OF  AN    INSOLVENT  DEBTOR. 

PAGE. 

Article  i.  Discharge    of    insolvent    debtor.     The     petition    and 

papers.     §§  2188,  2189,    2190,  2191 ...    468 

2.  Order  to    show  cause    and  hearing.     §§   2192-2193..    470 

3.  Discharge  and  its  effect.     §§   2 194-2 199 472 

Sections  op'  the  Code  and  Where   Found  in  this  Chapter. 

SEC.  ART.    PAGE. 

2188.  Who  may  be  exempted,  and  by  what  court i  468 

2i8g.  Contents  of  petition i  468 

2190.  Petitioner's  schedule i  469 

2191.  His  atifidavit i  469 

2192.  Order  to  show  cause 2  470 

2193.  Hearing,  etc 2  471 

2194.  Order  directing  assignment ;  assignment  pursuant  thereto 3  472 

2195.  When  discharge  to  be  granted  ;  effect  thereof 3  472 

2196.  Discharge  to  be  recorded,  etc 3  472 

2197.  Petitioner  to  be  released  from  imprisonment 3  472 

2198.  Debts  not  affected,  etc 3  473 

2 199.  Discharge,  when  void 3  473 

ARTICLE  I. 

Discharge  of  Insolvent  Debtor.    The  Petition  and 
Papers.     §§  2188-2191. 

g  2188.  [Am'd,  1895.]  Who  may  be  exempted,  and  by  what 
court. 

An  insolvent  debtor  may  be  exempted  from  arrest,  or  discharged  from  imprison- 
ment, as  prescribed  in  this  article.  For  that  purpose,  he  must  apply,  by  petition,  to 
the  county  court  of  the  county  in  which  he  resides,  or  is  imprisoned  ;  or,  if  he  resides 
oris  imprisoned  in  the  city  of  New  York,  to  the  Supreme  Court.  A  person  who  has 
been  admitted  to  the  jail  liberties  is  deemed  to  be  imprisoned  within  the  meaning  of 
this  article. 

2  R.  S.  28,  §  I  (2  Edm.  29)  ;  L.  1895,  ch.  946.     See  §  2200. 

J;  2189.  Contents  of  petition. 

The  petition  must  be  in  writing ;  it  must  be  signed  by  the  insolvent,  and  specify  his 
residence,  and  also,  if  he  is  in  prison,  the  county  in  which  he  is  imprisoned,  and  the 
cause  of  his  imprisonment.  It  must  set  forth,  in  substance,  that  he  is  unable  to  pay 
all  his  debts  in  full;  that  he  is  willing  to  assign  his  property  for  the  benefit  of  all  his 
creditors,  and  in  all  other  respects  to  comply  with  the  provisions  of  this  article,  for 
the  purpose  of  being  exempted  from  arrest  and  imprisonment,  as  prescribed  therein  ; 
and  it  must  pray,  that  upon  his  so  doing,  he  may  thereafter  be  exempted  from  arrest, 
by  reason  of  a  debt,  arising  upon  a  contract  previously  made  ;  and  also,  if  he  is  im- 
468 


EXEMPTION   FROM   ARREST   OF   INSOLVENT   DEBTOR.      469 


Art.   I.     Discharge  of  Insolvent  Debtor.     The  Petition  and  Papers. 


prisoned,  that  he  may  be  discharged  from  his  imprisonment.     It  must  be  verified  by 
the  affidavit  of  the  insolvent,  annexed  thereto,  taken  on  the  day  of  the  presentation 
thereof,  to  the  effect,  that  the  petition  is  in  all  respects  true  in  matter  of  fact. 
2  R.  S.  28,  §  I  (2  Edm.  29) ;  see  §  21 51. 

§  2190.  Petitioner's  schedxile. 

The  petitioner  must  annex  to  his  petition,  a  schedule,  in  all  respects  similar  to  that 
required  of  an  insolvent,  as  prescribed  in  §  2162  of  this  act. 

§  2191.     [Am'd,  1895,]     His  affidavit. 

An  affidavit,  in  the  following  form,  subscribed  and  taken  by  the  petitioner,  before 
the  county  judge,  or,  in  the  city  of  New  York,  before  a  justice  of  the  Supreme  Court, 
must  be  annexed  to  the  schedule  : 

"  I, ,  do  swear  "  (or  "  affirm,"  as  the  case  may  be,)  "  that  the  matters  of  fact, 

stated  in  the  schedule  hereto  annexed,  are,  in  all  respects,  just  and  true ;  that  I  have 
not,  at  any  time,  or  in  any  manner  whatsoever,  disposed  of  or  made  over  any  part  of 
my  property,  not  exempt  by  express  provision  of  law  from  levy  and  sale  by  virtue  of 
an  execudon,  for  the  future  benefit  of  myself  or  my  family,  or  disposed  of  or  made 
over  any  part  of  my  property,  in  order  to  defraud  any  of  my  creditors ;  and  that  I 
have  not  paid,  secured  to  be  paid,  or  in  any  way  compounded  with,  any  of  my  cred- 
itors, with  a  view  that  they  or  any  of  them  should  abstain  from  opposing  my  dis- 
charge." 

An  insolvent  debtor  who  has  been  imprisoned  in  a  civil  action 
for  converting  moneys  to  his  own  use,  will,  nevertheless,  be  dis- 
charged upon  his  complying  with  the  provisions  of  the  Code  of 
Civil  Procedure,  §  2188  et  seq.  It  was  so  held  even  where  the 
conversion  was  of  a  patent  and  heinous  character.  The  dis- 
charge was  granted  because,  in  converting  the  moneys,  though 
the  conversion  was  of  a  most  infamous  character,  it  was  not, 
nevertheless,  a  disposition  of  his  own  property  for  the  future 
benefit  of  himself  or  family.  It  seems,  however,  that  had  he  dis- 
posed of  a  portion  of  his  own  property  to  the  benefit  of  himself 
or  family,  he  will  not  be  discharged  though  the  burden  of  proof 
showing  a  disposition  of  property  is  upon  the  creditor.  ///  re 
Caajnano,  8  Civ.  Proc.  30.  The  application  of  the  insolvent 
debtor  for  a  discharge  from  imprisonment  must  be  made  to  one 
of  the  officers  specified  in  the  statute,  it  cannot  be  made  to  any 
court.  And  where  the  proper  officer  was  not  in  attendance  at 
court  on  the  return  day  of  the  order  to  show  cause,  the  proceed- 
ings cannot  be  continued  by  a  justice  of  the  Supreme  Court  not 
residing  in  the  county  where  the  debtor  resides,  or  is  imprisoned  ; 
and  if  the  proceedings  are  so  continued  they  are  void.  Matter 
of  Roberts,  JO  N.  Y.  7.  An  order  discharging  a  debtor  made  by 
the  proper  judge  is  not  appealable  to  the  General  Term  or  to  the 
appellate  division.     Matter  of  Roberts,  70  N.  Y.  70. 


470       EXEMPTION   FROM   ARREST   OF   INSOLVENT   DEBTOR. 

Art.  2.     Order  to  Show  Cause  and  Hearii;g. 

The  presentation  of  the  petition  and  schedule  of  an  imprisoned 
debtor  duly  verified  confers  jurisdiction.  It  is  said  the  order  to 
show  cause  is  an  incident,  but  not  necessary  to  jurisdiction.  A 
notice  which  apprises  the  creditors  of  the  debtor's  intention  to 
ask  that  he  may  assign  his  estate  for  the  benefit  of  his  creditors, 
and  be  discharged  from  imprisonment,  is  a  proper  notice  to  them 
to  show  cause  why  the  prayer  of  the  petition  should  not  be 
granted.  Matter  of  Jacobs,  12  Abb.  (N.  S.)  273.  Three  things 
are  necessary  to  give  a  judge  jurisdiction  to  discharge  a  debtor 
from  imprisonment:  i.  Power  to  act  on  the  general  subject- 
matter,  that  is,  authority  under  the  statute.  2.  Jurisdiction  of 
the  person  of  the  insolvent  who  must  reside  or  be  imprisoned  in 
the  county.  3.  Jurisdiction  of  the  particular  case  by  proper 
averments.  Devclin  v.  Cooper,  84  N.  Y.  410.  The  verified  peti- 
tion is  sufificient  proof  of  residence,  or  proof  may  be  made  by 
affidavit  of  another  than  the  debtor.     Id. 

Precedent  for  Petition. 

To  the  County  Court  of  the  County  of  Ulster  : 

The  petition  of  Abram  Doyle  respectfully  shows  that  your  petitioner 
resides  at  45  Liberty  Street,  at  the  city  of  Kingston,  in  the  county  of 
Ulster. 

That  he  is  an  insolvent  debtor,  and  is  unable  to  pay  all  his  debts  in 
full ;  that  he  is  willing  to  assign  his  property  for  the  benefit  of  all  his 
creditors,  and  in  all  other  respects  to  comply  with  the  provisions  of 
Article  II.,  of  title  i,  of  chapter  17,  of  the  Code  of  Civil  Procedure,  for  the 
purpose  of  being  exempted  from  arrest  and  imprisonment  as  prescribed 
therein. 

Wherefore,  your  petitioner  prays  that  upon  his  so  doing,  he  may 
thereafter  be  exempted  from  arrest  by  reason  of  any  debt  arising  upon 
a  contract  previously  made,  and  have  such  other  relief  as  he  may  be 
entitled  to  pursuant  to  said  article.  (Signature.) 

{Add  verification?) 

ARTICLE    II. 

Order  to  Show  Cause  and  Hearing.    §§  2192,  2193. 
8  2192.  Order  to  show  cause. 

The  petition,  and  the  papers  annexed  thereto,  must  be  presented  to  the  court,  and 
filed  with  the  clerk.  The  court  must  thereupon  make  an  order,  requiring  all  the  cred- 
itors of  the  petitioner  to  show  cause  before  it,  at  a  time  and  place  therein  specified, 
why  the  prayer  of  the  petitioner  should  not  be  granted;  and  directing  that  the  order 
be  published  and  served,  in  the  manner  prescribed  in  §  2165  of  this  act,  for  the  publi- 
cation and  service  of  an  order,  made  as  therein  prescribed. 

Id.  §§  3  and  4,  am'd.     See  §§  2164,  2165. 


EXEMPTION   FROM   ARREST   OF   INSOLVENT   DEBTOR.       471 
Art.  2.     Order  to  Show  Cause  and  Hearing. 

§  2193.  Hearing,  etc. 

The  provisions  of  §§  2166,  2167,  2168,  2169,  2170,  2172,  and  2173  of  this  act,  apply 
to  a  special  proceeding,  taken  as  prescribed  in  this  article. 

Service  of  a  notice  without  signature,  of  an  order  requiring 
creditors  to  show  cause  why  a  discharge  should  not  be  granted, 
which  notice  states  an  order  made  by  another  officer  than  the 
one  before  whom  the  proceedings  were  pending,  was  held  insuf- 
ficient, and  the  defect  not  cured  by  discharge.  People  v.  Gray, 
19  How.  238.  An  order  to  show  cause  before  one  of  the  judges 
of  the  Court  of  Common  Pleas,  in  and  for  the  city  of  New  York, 
naming  him,  is  a  sufficient  compliance  with  the  statute  as  to 
specifying  the  place  of  return.  Master  of  Jacobs,  12  Abb.  (N.  S.) 
273.  Upon  an  application  by  an  insolvent  and  imprisoned  debtor 
to  be  discharged  from  imprisonment,  the  notice  required  by 
statute  was,  by  the  order  made,  directed  to  be  published  in  two 
papers,  named,  and  was  required  to  be  given  for  a  certain  day, 
at  an  hour  named.  In  one  of  the  papers,  it  was  for  a  different 
day,  three  days  distant.  Held,  that  the  officer  had  no  right  to 
grant  the  discharge.  People  v.  Daly,  4  Hun,  641.  To  confer 
jurisdiction  to  grant  a  discharge,  a  publication  of  notice  as  re- 
quired by  statute  is  indispensable.  Dieckenhoffer  v.  Ahlborn,  2 
Abb.  N.  C.  372. 

Order  to  Show  Cause. 

At  a  term  of  the  Ulster  County  court  held  at  the  chambers  of  the  judge 
in  the  city  of  Kingston,  Ulster  County,  N.  Y.,  August  18,  1882  : 

Present : — Hon.  Y^illiam  Lawton,  Coiaity  Judge  oj  Ulster  County. 

In  the  Matter  of  the  Application  of  Abram 
Doyle,  an  Insolvent  Debtor,  for  exemption 
from  arrest. 


On  reading  and  filing  the  petition  of  Abram  Doyle^  an  insolvent 
debtor  for  exemption  from  arrest,  verified  this  20th  day  of  March,  1882, 
with  the  schedule  and  affidavit  thereto  annexed,  of  Abram  Doyle,  veri- 
fied before  the  above-named  William  Lawton,  the  i6th  day  of  July, 
1882,  and  on  motion  of  William  T.  Holt,  attorney  for  said  petitioner, 

Ordered,  that  all  the  creditors  of  said  Abram  Doyle  show  cause  be- 
fore this  court  at  a  term  thereof  to  be  held  at  the  court-house  in  the  city 
of  Kingston  on  the  23d  day  of  September,  1882,  at  ten  o'clock  in  the 
forenoon,  why  the  prayer  of  the  said  petitioner,  Abram  Doyle,  should 
not  be  granted. 

That  the  petitioner  also  cause  to  be   served  upon  each  creditor  of 


472       EXEMPTION   FROM   ARREST    OF   INSOLVENT   DEBTOR. 
Art.  3.     Discharge  and  its  Effect. 


said  Abram  Doyle,  residing  within  the  United  States,  whose  place  of 
residence  is  known  to  him,  a  copy  of  this  order,  either  personally  at 
least  twenty  days  before  the  said  23d  day  of  September,  1882,  or  by 
depositing  it  at  least  forty  days  before  that  day  in  the  postoffice,  inclosed 
in  a  post-paid  wrapper,  addressed  to  the  creditor  at  his  usual  place  of 
residence;  WILLIAM  LAWTON, 

County  Judge  of  Ulster  County. 

ARTICLE    III. 

Discharge  and  its  Effect.    §§  2 194-2 199. 

§  2194.    Order    directing    assignment;     assignment    pursuant 

thereto. 

An  order  directing  the  execution  of  an  assignment  must  be  made  by  the  court 
where  it  appears,  by  the  verdict  of  the  jury,  or,  if  a  jury  has  not  been  demanded,  or 
the  jurors  have  been  discharged  by  reason  of  their  inability  to  agree,  where  it  satisfac- 
torily appears  to  the  court,  as  follows : 

1.  That  the  petitioner  is  unable  to  pay  his  debts. 

2.  That  the  schedule  annexed  to  his  petition  is  true. 

3.  That  he  has  not  been  guilty  of  any  fraud  or  concealment,  in  violation  of  the  pro- 
visions of  this  article. 

4.  That  he  has,  in  all  things,  conformed  to  the  matters  required  of  him  by  this 

article. 

The  provisions  of  §§  2175,  2176,  and  2177  of  this  act  apply  to  the  order  prescribed 
in  this  section,  and  to  the  assignment  made  in  pursuance  thereof,  except  that  the  trus- 
tee or  trustees  must  be  nominated,  as  well  as  appointed,  by  the  court. 

See,  also,  §§2175,  2176,  2177. 

§  2195.  When  discharge  to  be  granted;  effect  thereof. 

Upon  the  production  by  the  petitioner  of  the  certificates  of  the  trustee  or  trustees, 
and  the  county  clerk,  to  the  effect  prescribed  in  §  2178  of  this  act,  the  court  must 
grant  to  the  petitioner  a  discharge,  declaring  that  the  petitioner  is  forever  thereafter  ex- 
empted from  arrest  or  imprisonment  by  reason  of  any  debt  due  at  the  time  of  making 
the  assignment,  or  contracted  before  that  time,  though  payable  afterwards ;  or  by  rea- 
son of  any  liability  incurred  by  him  by  making  or  indorsing  a  promissory  note,  or  by 
accepting,  drawing,  or  indorsing  a  bill  of  exchange  before  the  execution  of  the  assign- 
ment ;  or  in  consequence  of  the  payment,  by  any  party  to  such  a  note  or  bill,  of  the 
whole  or  any  part  of  the  money  secured  thereby,  whether  the  payment  is  made  before 
or  after  the  execution  of  the  assignment,  with  the  exceptions  specified  in  §  2218  of 
this  act.  The  discharge  shall  have  the  effect  therein  declared  as  prescribed  in  this 
section. 

2  R.  S.  28,  §  10,  am'd.  See  §§  2177  and  2218;  see  §§  29  and  30  of  art.  7,  R.  S.,  am'd; 
L.  1859,  ch.  2. 

§  2196.  Discharge  to  be  recorded,  etc. 

The  provisions  of  §  2 181  of  this  act  apply  to  the  discharge  and  to  the  petition  and 
other  papers  upon  which  it  was  granted. 

Section  19,  art.  7,  R.  S.,  am'd  by  L.  1866,  ch.  116  (6  Edm.  701). 

§  2197.  Petitioner  to  be  released  from  imprisonment. 

If,  at  the  time  when  the  discharge  is  granted,  the  petitioner  is  imprisoned  by  virtue 


EXEMPTION   FROM   ARREST   OF   INSOLVENT   DEBTOR.       473 
Art.  3.     Discharge  and  its  Effect. 

of  an  execution  against  his  person  issued,  or  of  an  order  of  arrest  made  in  an  action 
or  special  proceeding  founded  upon  a  debt,  liability,  or  judgment  as  to  which  he  is 
exempted  from  arrest  or  imprisonment,  as  prescribed  in  the  last  section  but  one,  the 
officer  must  forthwith  release  him,  on  production  of  the  discharge  or  a  certified  copy 
of  the  record  thereof. 
Id.  §  II,  am'd. 

g  2198.  Debts  not  affected,  etc. 

A  debt,  demand,  judgment,  or  decree  against  an  insolvent  discharged  as  prescribed 
in  this  article  is  not  affected  or  impaired  by  the  discharge ;  but  it  remains  valid  and 
effectual  against  all  his  property  acquired  after  the  execution  of  the  assignment.  The 
lien  acquired  by  or  under  a  judgment  or  decree  upon  any  property  of  the  insolvent  is 
not  affected  by  the  discharge. 

Id.  §12. 

§  2199.  Discharge,  when  void. 

A  discharge  granted  to  an  insolvent  as  prescribed  in  this  article  is  void  in  the  same 
cases  so  far  as  they  are  applicable  in  which  a  discharge,  granted  as  prescribed  in 
article  first  of  this  title,  is  therein  declared  to  be  void ;  and  the  validity  of  such  a 
discharge  may  be  tested  in  the  same  manner. 

Where  a  debtor  makes  an  application  to  be  exempt  from  arrest 
or  imprisonment  by  reason  of  any  debts  arising  upon  contract 
previously  made,  viz.,  money  collected  in  a  fiduciary  capacity, 
and  it  appears  that  within  one  year  previous  to  such  application 
he  has  given  a  chattel  mortgage  to  secure  an  antecedent  debt, 
knowing  of  his  insolvency,  it  was  held  that  the  discharge  must 
be  denied.  Matter  of  Mozvcr,  i  Law  Bull.  39.  An  insolvent  is 
not  entitled  to  his  discharge  from  an  indebtedness  which  arose 
from  his  embezzlement  of  money,  and  evidences  of  debt  which 
came  into  his  possession  as  clerk  in  the  course  of  his  employ- 
ment as  such,  but  the  mere  statement  in  the  petition  that  the 
demand  arose  when  he  was  clerk  of  the  creditors  for  money 
which  he  had  in  his  possession  and  did  not  account  for,  and  ap- 
propriated to  his  own  use,  is  not  sufificient  ground  for  denying 
the  discharge.  Alattcr  of  Pye,  10  Ahh.  /ifig.  The  provision  only 
relates  to  claims  on  contract.  Grocers'  Naf  I  Bank  v.  Clark,  31 
How.  115.  Giving  preferences  to  creditors  previous  to  an  assign- 
ment is  no  answer  to  a  plea  of  discharge.  Haydcn  v.  Palmer,  24 
Wend.  364.  But  to  the  contrary,  the  later  case  of  People  v. 
O'Brien,  3  Abb.  Dec.  552.  An  insolvent's  discharge  which  stated 
"that  the  said  insolvent  has  conformed  in  all  things  to  those 
matters  required  of  him  by  the  statute,  helel,  to  be  a  suf^cient 
recital  of  all  jurisdictional  facts.  Pratt  v.  Chase,  29  How.  296. 
The  discharge  under  the  statute  applies  to  judgments  in  actions 
for  torts  as  well  as  on  contract,  but  to  have  such  effect  judgment 


474      EXEMPTION   FROM   ARREST   OF   INSOLVENT   DEBTOR 

Art.  3.     Discharge  and  its  Effect. 

must  have  been  entered  on  the  verdict  at  the  time  of  the  dis- 
charge. Hay  den  v.  Palmer,  24  Wend.  364 ;  Luther  v.  Deyo,  19 
id.  629 ;  Ex  parte  Thayer,  4  Cow.  66 ;  People  v.  Marine  Court, 
3  id.  366;  Grocers  Bank  v.  Clark,  31  How.  115.  For  form  of 
discharge,  see  form  under  §  2178.  An  order  to  discharge  an  in- 
solvent debtor  must  be  made  by  the  court.  Hayes  v.  Bowe,  65 
How.  347.  Where  the  order  of  discharge  contains  recitals  of  all 
jurisdictional  facts  it  protects  the  sheriff.  Devlin  v.  Cooper,  84 
N.  Y.  410. 

If  the  insolvent  be  in  prison  in  any  suit  or  proceeding  founded 
on  any  contract  or  liability  as  to  which  he  is  exempted  from  im- 
prisonment by  reason  of  his  discharge,  granted  under  the  statute, 
he  must  be  released  on  producing  his  discharge.  Hayden  v. 
Palmer,  24  Wend.  364. 


CHAPTER  XI. 

DISCHARGE  OF  AN   IMPRISONED  DEBTOR  FROM 
IMPRISONMENT. 

PAGE. 

Article     i.  Who  may  be    discharged    and    by  what  court.     §§ 

2200,  220I,  2216,  2217,  2218 475 

2.  Petition  and  papers.     §§  2202  to  2207 47^ 

3.  Proceedings,  assignment  and  discharge.     §§  2208  to 

2214 483 

4.  Powers  and  duties  of  trustee,  §  2215 49^ 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SEC.  A'*'^-    ■'^'^^ 

2200.  Who  may  be  discharged i  47  5 

2201 .  To  what  court  application  to  be  made i  47  5 

2202.  When  petition  may  be  presented 2  478 

2203.  Contents  of  petition  ;  schedule 2  478 

2204.  Atftdavit  of  petitioner 2  478 

2205.  Notice  to  creditors 2  479 

2206.  Id. ;  when  service  cannot  be  made 2  479 

2207.  Id. ;  when  State  a  creditor 2  479 

2208.  Proceedings  on  presentation  of  petition 3  483 

2209.  Adjournment 3  484 

2210.  Proceedings  on  adjourned  day 3  4^4 

221 1.  Assignment;  effect  thereof 3  4^4 

2212.  Discharge  ;  when  to  be  granted 3  484 

2213.  Petitioner's  property  still  liable 3  484 

2214.  When  creditor  may  issue  new  execution  against  person 3  484 

221 5.  Powers  and  duties  of  trustees 4  49' 

2216.  Creditor  may  notify  debtor  to  apply  for  discharge i  47^ 

2217.  Effect  of  failure  so  to  apply i  47^ 

2218.  Debtor  to  United  States,  etc.,  not  to  be  discharged i       476 

ARTICLE  I. 

Who  may  be  Discharged  and  by  what  Court. 
§§  2200,  2201,  2216,  2217,  2218. 

§  2200.  Who  may  be  discharged. 

A  person  imprisoned  by  virtue  of  an  execution  to  collect  a  sum  of  money,  issued  in  a 
civil  action  or  special  proceeding,  may  be  discharged  from  the  imprisonment,  as  pre- 
scribed in  this  article.  A  person  who  has  been  admitted  to  the  jail  liberties  is  deemed 
to  be  imprisoned,  \\-ithin  the  meaning  of  this  article. 

2  R.  S.  31,  §  I  (2  Edm.  31),  as  am'd,  L.  1847,  ch.  390,  §  i. 

On  justice's  transcript,  see  §  3033. 

§  2201.     [Am'd,  1895.]    To  what  court  application  to  be  made. 
Application  for  such  a  discharge  must  be  made  by  petition,  addressed  to  the  court 


476  DISCHARGE    OF   AN   IMPRISONED    DEBTOR. 


Art.   I.     Who  may  be  Discharged  and  by  what  Court. 


from  which  the  execution  issued ;  or  to  the  county  court  of  the  county  in  which  he  is 
imprisoned  ;  or,  if  he  is  imprisoned  in  the  city  of  New  York,  to  the  Supreme  Court. 

§  2216.  Creditor  may  notify  debtor  to  apply  for  discharge. 

Where  a  person  has  been  imprisoned  by  virtue  of  an  execution,  for  the  space  of  three 
months  after  he  was  entitled,  by  the  provisions  of  this  article,  to  apply  for  a  discharge  ; 
and  has  neither  made  such  an  application,  nor  appUed  for  his  discharge  under  the 
provisions  of  article  first  of  this  dtle  ;  the  judgment  creditor,  by  virtue  of  whose  execu- 
tion he  is  imprisoned,  may  serve  upon  the  prisoner  a  written  notice,  requiring  him  to 
apply  for  his  discharge,  according  to  the  provisions  of  this  article. 

§  2217.  Effect  of  failure  so  to  apply. 

If  the  prisoner  does  not,  within  thirty  days  after  personal  service  of  such  a  notice, 
either  present  a  petition  to  the  proper  court,  as  prescribed  in  article  first  of  this  title, 
or  serve,  upon  the  creditor  giving  the  notice,  a  copy  of  a  petition  and  schedule,  with  a 
notice  of  his  intention  to  apply  for  his  discharge,  as  prescribed  in  this  article  ;  or  if, 
after  such  a  presentation  or  service,  he  does  not  diligently  proceed  thereupon  to  a 
decision,  he  shall  be  forever  barred  from  obtaining  his  discharge  under  the  provisions 
of  this  article,  or  of  article  first  of  this  title. 

§  2218.  Debtor  to  United  States  etc.,  not  to  be  discharged. 

Neither  of  the  following  named  persons  shall  be  discharged  from  imprisonment, 
under  the  provisions  of  this  article  : 

1.  A  person  owing  a  debt  or  duty  to  the  United  States. 

2.  A  person  owing  a  debt  or  duty  to  the  State,  for  taxes  or  for  money  received  or 
collected  by  any  person,  as  a  public  officer  or  in  a  fiduciary  capacity,  or  a  cause  of 
action  specified  in  §  1969  of  this  act,  or  a  judgment  recovered  upon  such  a  cause  of 
action. 

An  infant  is  entitled  to  his  discharge  from  imprisonment  on 
complying  with  the  terms  of  the  statute.  The  prisoner's  act  in 
making  an  assignment  will  be  regarded  as  valid  notwithstanding 
his  infancy.  People  \.  Miillin,  25  Wend.  698.  A  prisoner  will 
not  be  discharged  where  he  is  imprisoned  for  non-payment  of  a 
fine  imposed  for  a  contempt  of  court  for  the  non-performance  of 
some  act  or  duty  which  it  is  within  his  power  to  perform. 
Spaulding  v.  People,  7  Hill,  301,  af=firmed,  10  Paige,  301  ;  Van 
Wczelv.  Van  Wezel,  3  id.  38;  Patrick  v.  Warner,  4  id.  398.  A 
person  committed  for  non-payment  of  alimony  is  entitled  to  his 
discharge.  People  v.  Cowles,  4  Keyes,  38.  But  a  prisoner  will 
not  be  discharged  who  is  in  custody  of  the  sheriff  under  an  at- 
tachment to  bring  him  into  court  to  answer  interrogatories  in  a 
proceeding  for  contempt.  Such  a  discharge  is  premature  till 
after  conviction.  Jackson  v.  Smith,  5  Johns.  115  ;  Bissellv.  Kip, 
id.  89.  In  Patrick  v.  Warner,  4  Paige,  397,  it  is  questioned 
whether  a  person  imprisoned  for  costs  of  a  proceeding,  as  for  a 
contempt  to  enforce  a  civil  remedy,  is  entitled  to  his  discharge. 
If  the  judgment  exceeds  $500,  and  the  defendant  has  been  im- 


DISCHARGE    OF   AN    IMPRISONED    DEBTOR.  477 

Art.    I.     Who  may  be  Discharged  and  by  what  Court. 

prisoned  less  than  three  months,  a  discharge  will  be  void  if 
granted.  Brcnvnc  v.  Bradley,  5  Abb.  141  ;  Matter  of  Rosenberg, 
10  Abb.  (N.  S.)  450;  Dusart  v.  Delacroix,  i  Abb.  (N.  S.)  409,  n. 
It  was  held  under  the  former  statute,  that  a  person  entitled  to 
the  jail  limits  was  entitled  to  apply  for  a  discharge  as  well  as  one 
in  close  custody.  Holmes  v.  La^tsing,  3  Johns.  Cas.  73  ;  Peters 
V.  Henry,  6  Johns.  121  ;  Coinan  v.  Storm,  26  How.  84.  Al- 
though it  was  also  held  to  the  contrary,  in  Bylandt  v.  Com- 
stock,  25  How.  429,  the  language  of  the  present  section  deter- 
mines the  question,  overruling  the  authorities  to  the  contrary, 
it  having  been  drafted  by  the  codifiers  with  that  view.  The 
object  of  the  statute  is  the  discharge  of  honest  debtors  who 
make  an  honest  and  full  surrender  of  all  their  property  for  their 
creditors.  Matter  of  Brady,  69  N.  Y.  215.  Though  the  petition 
be  addressed  to  the  county  judge,  instead  of  to  the  court,  the 
validity  of  the  discharge  is  not  afTected,  as  it  is  a  mere  irreg- 
ularity and  not  a  jurisdictional  defect.  BortJiwick  v.  Hozve,  27 
Hun,  505. 

An  application  for  the  discharge  of  an  insolvent  debtor  may  be 
made  in  the  court  out  of  which  the  execution  issued.  Matter  of 
Irving,  3  How.  (N.  S.)  236.  While  the  form  of  the  petition  is 
not  prescribed  by  the  statute,  enough  must  appear  upon  the  face 
of  it  to  give  the  officer  jurisdiction.  All  the  facts  to  entitle  the  ap- 
plicant to  a  discharge  must  appear,  more  particularly  all  jurisdic- 
tional facts.  Brozvne  v.  Bradley,  5  Abb.  141  ;  People  v.  Brooks, 
40  How.  165.  Where  the  petition  showed  that  the  judgment  on 
which  the  petitioner  was  taken  in  execution  exceeded  $600,  but  did 
not  also  show  that  he  had  been  imprisoned  three  months,  it  was 
held  on  motion  by  the  plaintifT  to  issue  a  new  execution  against 
the  body  of  the  debtor,  that  the  petition  was  defective,  and  the 
discharge  granted  upon  it  void  for  want  of  jurisdiction.  People 
V.  Bancker,  5  N.  Y.  106.  The  omission  of  an  account  of  the 
debtor's  real  and  personal  estate  as  it  existed  at  the  time  of  the 
arrest  is  not  supplied  by  allegations  in  the  petition,  that  prior  to 
the  rendition  of  the  judgment  the  debtor  was  adjudged  a  bank- 
rupt, and  an  assignee  in  bankruptcy  appointed.  Bullymore  v. 
Cooper,  46  N.  Y.  236.  The  mere  fact  that  his  imprisonment 
under  the  execution  and  order  of  arrest  has  continued  for  three 
months  is  not  sufficient.  Diisart  v.  Delacroix,  i  Abb.  (N.  S.) 
409.     Proof  that  the  insolvent  resided  or  was  imprisoned    in  the 


478  DISCHARGE    OF   AN    IMPRISONED    DEBTOR. 


Art.   2.     Petition  and  Papers. 


county  where  the  application  was  made  was  required  as  jurisdic- 
tional, under  the  Revised  Statutes.  People  v.  MaeJiado,  14  Abb. 
460.  An  insolvent  debtor,  whose  petition  for  a  discharge  has 
been  refused  because  his  proceedings  are  adjudged  to  be  not  just 
and  fair,  in  that  he  failed  to  include  in  his  petition  an  account  of 
some  of  his  property,  cannot  be  permitted  to  present  a  new 
petition,  including  such  property,  and  stating  no  new  facts  to  ex- 
plain or  justify  his  acts  in  his  former  proceedings,  but  he  will  be 
left  to  an  application  to  reopen  the  former  proceeding,  upon  proof 
of  the  good  faith  of  the  matters  charged  upon  him  in  that  pro- 
ceeding. Matter  of  Thomas,  \o  Khh.  {^.^>)  w A,.  A  petition  for 
the  discharge  of  an  imprisoned  debtor  sufficiently  sets  forth  the 
cause  of  his  imprisonment  if  it  alleges  that  he  is  confined  in  the 
county  jail  by  virtue  of  an  execution  against  his  person,  issued  in 
a  civil  action,  brought  by  a  person  therein  named.  Ex  parte 
Chappell,2i  Hun,  179.  The  application  was  required  to  be  to 
the  court  under  the  Revised  Statutes.  Mathews  Case,  14  Abb. 
115  ;  Matter  of   Walker,  2  Duer,  655. 

ARTICLE  II. 
Petition  and  Papers.    §§  2202-2207. 

§  2202.  When  petition  may  be  presented. 

A  person  so  imprisoned  may  apply  for  such  a  discharge,  at  any  time ;  unless  the 
sum,  or,  where  he  is  imprisoned  by  virtue  of  two  or  more  executions,  the  aggregate  of 
the  sums,  for  which  he  is  imprisoned,  exceeds  five  hundred  dollars  ;  in  which  case,  he 
cannot  present  such  a  petition,  until  he  has  been  imprisoned,  by  virtue  of  the  execu- 
tion or  executions,  for  at  least  three  months. 

In  connection  with  above  section  see  §111,  Code  Civ.  Pro. 

§  2203.  Contents  of  petition  ;  schedule. 

The  petition  must  be  in  writing;  it  must  be  signed  by  the  petitioner;  and  it  must 
state  the  cause  of  his  imprisonment,  by  setting  forth  a  copy,  or  the  substance,  of  the 
execution,  or,  if  there  are  two  or  more  executions,  of  each  of  them.  The  petitioner 
must  annex  thereto,  and  present  therewith,  a  schedule,  containing  a  just  and  true  ac- 
count of  all  his  property,  and  of  all  charges  affecting  the  same,  as  the  property  and 
charges  existed  at  the  time  when  he  was  first  imprisoned,  and  also  as  they  exist  at  the 
time  when  the  petition  is  prepared;  together  with  a  just  and  true  account  of  all  deeds, 
securities,  books,  vouchers,  and  papers,  relating  to  the  property,  and  to  the  charges 
thereupon. 

2  R.  S.  31,  §  4,  am'd. 

§  2204.  AflBLdavit  of  petitioner. 

An  affidavit,  in  the  following  form,  subscribed  and  taken  by  the  petitioner,   on  the 

day  of  the  presentation  of  the  petition,  must  be  annexed  to  the  petition  and  schedule  : 

"  I, ,  do  swear  "  (or  "  affirm,"  as  the  case  may  be),  "  that  the  matters  of  fact, 


DISCHARGE   OF   AN    IMPRISONED   DEBTOR.  479 

Art.   2.     Petition  and  Papers. 

stated  in  the  petition  and  schedule  hereto  annexed,  are,  in  all  respects,  just  and  true  ; 
and  that  I  have  not,  at  any  time  or  in  any  manner  whatsoever,  disposed  of  or  made 
over  any  part  of  my  property,  not  exempt  by  express  provision  of  law  from  levy  and 
sale  by  virtue  of  an  execution,  for  the  future  benefit  of  myself  or  my  family,  or  dis- 
posed of  or  made  over  any  part  of  my  property,  with  intent  to  injure  or  defraud  any 
of  my  creditors." 

Id.  §  5,  am'd.     See  §§  2163  and  2191. 

§  2205.  Notice  to  creditors. 

At  least  fourteen  days  before  the  petition  is  presented,  the  petitioner  must  serve, 
upon  the  creditor  in  each  execution,  by  virtue  of  which  he  is  imprisoned,  a  copy  of  the 
petition  and  of  the  schedule ;  together  with  a  written  notice  of  the  time  when,  and 
place  where,  they  will  be  presented.  If,  by  reason  of  changes  occurring  after  the 
service,  it  is  necessary,  before  presenting  the  petition  and  schedule,  to  correct  any 
statement  contained  in  the  schedule,  the  correction  may  be  made  by  a  supplemental 
schedule,  a  copy  of  which  need  not  be  served,  unless  the  court  so  directs. 

Id.  §  3,  am'd. 

§  2203.    Id.  ;  when  service  cannot  be  made. 

The  papers,  specified  in  the  last  section,  may  be  served,  either  upon  the  creditor  or 
his  representative,  or  upon  the  attorney  whose  name  is  subscribed  to  the  execution ; 
and,  in  either  case,  in  the  manner  prescribed  in  this  act  for  the  service  of  a  paper  upon 
an  attorney,  in  an  action  in  the  Supreme  Court.  Where  it  is  made  to  appear  by  af- 
fidavit, to  the  satisfaction  of  the  court,  that  service  cannot,  with  due  diligence,  be  so 
made  within  the  State,  upon  either,  the  court  may  make  an  order,  prescribing  the 
mode  of  service  or  directing  the  publication  of  a  notice  in  lieu  of  service,  in  such  a 
manner  and  for  such  a  length  of  time,  as  it  thinks  proper ;  and  thereupon,  it  may  di- 
rect an  adjournment  of  the  hearing  to  such  a  time  as  it  thinks  proper. 

Id.  part  of  §  3. 

§.  2207.  Id.  ;  when  State  a  creditor. 

Where  the  State  is  a  creditor,  the  papers  must  be  served  upon  the  attorney-general, 
who  must  represent  the  State  in  the  proceedings. 

A  discharge  is  void  where  the  papers  fail  to  show  the  debtor 
has  been  imprisoned  for  three  months.  Browne  v.  Bradley,  5 
Abb.  141.  An  application  for  a  discharge  must  show  that  the 
arrest  is  for  over  $500,  and  that  he  has  been  imprisoned  more 
than  three  months.  An  objection  to  the  jurisdiction  on  this 
ground  may  be  taken  at  any  time.  Matter  of  Rosenberg,  10  Abb. 
(N.  S.)  450.  Where  the  aggregate  of  the  sums  for  which  the 
debtor  is  imprisoned  exceed  five  hundred  dollars,  the  petition 
must  allege  that  the  debtor  has  been  imprisoned  three  months, 
as  such  fact  is  jurisdictional.  Kappelv.  Yotz,  Dly.  Rgstr.,  De- 
cember 26,   1883. 

The  limitation  of  time  during  which  the  debtor  may  be  im- 
prisoned on  civil  process  applies  only  to  the  time  he  is  impris- 
oned on  the  final  process,  and  does  not  include  a  prior  imprison- 
ment on  another  arrest.    In  re  Coyne,  18  Civ,  Pro.   397,  13    Supp. 


48o  DISCHARGE   OF   AN   IMPRISONED    DEBTOR. 

Art.   2.     Petition  and  Papers. 

797.  It  is  essential  to  the  jurisdiction  of  the  court  in  proceedings 
for  the  discharge  of  an  imprisoned  debtor,  that  the  demand  upon 
which  the  apphcation  is  founded  should  conform  with  exactness 
to  the  provisions  of  the  statute  ;  thus  facts,  not  mere  conclu- 
sions from  facts,  must  be  set  forth  in  the  petition  in  order  that 
the  court  may  determine  whether  the  schedule  is  correct  and 
whether  the  petitioner's  proceedings  are  just  and  fair  ;  therefore 
when  these  facts  are  not  presented  the  application  of  the  peti- 
tioner will  be  denied,  but,  it  seems,  with  leave  to  renew  on  sufifi- 
cient  papers.  Matter  of  Patton,  7  Misc.  467,  58  St.  Rep.  512,  23 
Civ.  Pro.  331.  A  judgment  creditor,  by  appearing  before  a 
county  judge  in  a  proceeding  for  the  discharge  of  the  judgment 
debtor  from  imprisonment,  waives  the  objection  that  the  affidavit 
of  the  petitioner  is  not  made  on  the  day  of  the  presentation  thereof, 
by  not  objecting  thereto.  ScJiaefcrv.  Rislcy,  114  N.  Y.  23,  22 
St.  Rep.  168.  It  seems  though  the  demand  upon  which  judgment 
was  recovered  is  a  debt  fraudulently  contracted  or  a  claim  for 
damages  for  deceit,  the  discharge  of  the  debtor  from  imprison- 
ment under  an  execution  cannot  be  denied  unless  it  is  shown 
that  he  has  at  some  time  made  away  with  his  property  with  intent 
to  benefit  himself  or  his  family  in  the  future,  or  with  intent  to  in- 
jure and  defraud  the  creditors,  and  it  seems  therefore  that  a  judg- 
ment debtor  imprisoned  on  an  execution  on  judgment  for  money 
obtained  by  fraud  cannot  be  discharged  from  imprisonment  when 
he  has  used  such  money  in  maintaining  himself  and  family,  with 
a  knowledge  that  his  creditors  will  thereby  be  losers.  In  this 
case  he  is  deemed  to  have  disposed  of  the  money  with  intent 
to  defraud  his  creditors.     In  re  Lowell,  8  Civ.  Pro.  7. 

The  statute  is  imperative  that  the  papers  presented  to  the 
court  shall  conform  with  exactness  to  its  provisions.  It  is 
requisite  to  jurisdiction  of  a  petition  for  a  discharge  that  an 
account  of  the  real  and  personal  estate  be  given  as  it  existed  at 
the  time  of  preparing  the  petition.  This  is  to  prevent  payments 
and  transfers  of  property  to  other  creditors  than  the  execution 
creditor  during  the  time  of  the  imprisonment.  It  must  contain 
an  account,  as  required  by  statute.  A  statement  that  the  peti- 
tioner, prior  to  the  rendition  of  the  judgment  on  which  he  was 
arrested,  was  declared  bankrupt,  and  an  assignee  of  all  his  prop- 
erty appointed,  in  whom  title  has  vested,  does  not  supply  the  de- 
fect of  an   account  of  his   property  at  the  time    he  was  arrested. 


DISCHARGE    OF    AN    IMPRISONED    DEBTOR.  481 

Art.   2.     Petition  and  Papers. 

No  account  or  statement  of  creditors  is  required,  since  no  cred- 
itors are  interested  in  the  proceeding  except  such  as  have 
the  debtor  on  execution.  Bullymore  v.  Cooper,  46  N.  Y.  236  ; 
People  V.  Bancker,  5  id.  106  ;  People  v.  Brooks,  40  How.  165  ; 
Hallx.  Kellogg,  12  N.  Y.  325. 

Form  of  Petition. 

To  the  Suprefne  Court  0/ iJie  State  0/ New  York  : 

The  petition  of  Stephen  Harp,  of  the  town  of  Hurley,  county  of 
Ulster,  N.  Y.,  respectfully  shows  to  the  court  that  the  petitioner  is  a 
prisoner  confined  in  the  jail  of  the  county  of  Ulster,  on  an  execution 
against  the  person,  issued  out  of  this  court,  in  a  civil  action,  wherein 
Charles  French  is  plaintiff  and  your  petitioner  is  defendant  ;  and  in 
which  action  judgment  was  rendered  against  your  petitioner  for  the 
sum  of  $854.35,  on  the  2.qd  day  of  June,  1884.  That  the  said  sum 
of  $854.35  is  now  due  aiiu  unpaid  on  said  execution,  and  that  your 
petitioner  has  been  imprisoned  on  said  execution  for  more  than 
three  months. 

And  your  petitioner  further  shows  that  hereto  annexed,  and  marked 
as  schedules  "A"  and  "B,"  is  a  just  and  true  account  of  all  his 
estate,  real  and  personal,  in  law  and  equity,  and  of  all  charges 
affecting  the  same,  as  the  property  and  charges  existed  at  the  time 
when  he  was  first  imprisoned  and  also  as  such  property  and  charges 
existed  at  the  time  of  preparing  the  petition,  together  with  a  just  and 
true  account  of  all  deeds,  securities,  books,  and  writings  whatsoever 
relating  to  the  said  estate  and  the  charges  thereon,  with  the  names 
and  places  of  abode  of  the  witnesses  to  such  deeds,  securities,  and 
writings. 

Your  petitioner  therefore  prays  the  order  of  this  court,  directing 
the  sheriff  of  said  county  to  bring  your  petitioner  into  this  court  on 
a  day  assigned  for  that  purpose,  that  your  petitioner  may  be  dis- 
charged from  his  said  imprisonmen.t  on  his  compliance  with  the  pro- 
visions of  the  Code  of  Civil  Procedure  ;  and  that  your  petitioner  may 
have  such  further  or  other  relief  as  he  may  be  entitled  to  under  the 
provisions  of  the  statute  authorizing  debtors  imprisoned  on  execution 
in  civil  causes  to  be  discharged  from  imprisonment. 

Dated  January  I,  1885.  (Signature.) 

C^^erification  as  required  by  §  2204.) 

The  petitioner's  schedules  must  set  forth  facts  and  not  mere 
conclusions.  Thus  the  following  statement  in  the  schedules  was 
held  to  be  insufficient  under  the  statute :  "  A  just  and  true  state- 
ment of  all  my  property  and  charges  affecting  it  as  it  existed  at 
the  time  of  my  petition,  was  prepared,  to  wit,  March  6,  1894. 
There  has  been  no  substantial  change  in  the  condition  of  my 
property  since  I  was  first  imprisoned."  The  court  says  :  "  Such 
is  not  the  just  and  true  account  contemplated  by  the  statute. 
31 


482  DISCHARGE   OF   AN   IMPRISONED   DEBTOR. 

Art.   2.     Petition  and  Papers. 

The  facts,  not  the  mere  conclusion  from  facts,  must  be  set  forth 
in  order  that  the  court  may  determine  whether  the  schedule  is 
correct,  and  whether  the  petitioner's  proceedings  are  just  and 
fair."  Matter  of  Paton,  7  Misc.  467,  58  St.  Rep.  512,  23  Civ. 
Pro.  331. 

A  discharge  is  not  defective,  although  the  petition  asked  for  a 
discharge  in  an  action,  "  in  which  one  Goodwin  was  plaintiff,  and 
Munger  and  others,  defendants,"  thereby  naming  onl)^  one  of 
two  plaintiffs,  and  but  one  of  the  defendants  arrested.  Goodzvin 
V.  Griffis,  88  N.  Y.  629.  The  court  does  not  obtain  jurisdiction 
to  discharge  the  prisoner  unless  he  verifies  the  petition  at  the 
time  he  presents  it,  and  the  affidavit  is  a  prerequisite  to  jurisdic- 
tion. Browne  v.  Bradley,  5  Abb.  141  ;  Bullyniore  v.  Cooper,  2 
Lans,  71,  affirmed,  46  N.  Y.  236;  see  Hillyer  v.  Roscnbery,  11 
Abb.  (N.  S.)  402.  The  affidavit  under  the  Revised  Statutes  was 
not  required  to  be  indorsed  and  sworn  to  in  presence  of  the  court, 
but  at  time  of  its  presentation,  it  must  have  been  sworn  to  by 
the  applicant.  Richmond  v.  Praiui,  24  Hun,  578.  It  is  held  in 
Schaeffer  v.  Rise/y,  6  State  Rep.  417,  that  the  affidavit  must  be 
made  on  the  day  of  the  presentation  of  the  petition  and  not 
previously,  and  it  is  intimated  that  no  copy  of  affidavit  need  be 
served.  This  necessarily  follows  if  this  rule  is  strictly  followed, 
and  it  seems  to  be  jurisdictional.  Under  the  requirement  of  this 
section  as  to  the  affidavit,  it  is  held,  in  Matter  of  Brown,  39  Hun, 
27,  that  if  it  be  shown  that  the  creditor  was  in  any  way  defrauded 
or  injured  by  the  transaction  alleged  to  be  fraudulent,  proof 
thereof  may  be  given  whether  such  transaction  preceded  or  fol- 
lowed the  recovery  of  the  judgment  by  such  creditor,  or  even 
the  inception  of  the  cause  of  action  on  which  such  judgment  was 
recovered.  Though  §  2204  requires  the  petition  to  be  verified 
upon  the  day  of  the  presentation  thereof,  yet,  an  omission  to  do 
so,  though  a  jurisdictional  defect,  is  waived,  if  the  attorney  for 
the  execution  creditor  appears  without  objection  on  that  day, 
and  bases  his  defence  upon  the  merits  only.  Shaffer  v.  Riseley, 
114  N.  Y.  23,  22  St.  Rep.  168,  16  Civ.  Pro.  369.  P^aud  in  the 
disposition  of  his  property  by  the  debtor  will  bar  discharge, 
though  fraud  in  contracting  the  debt  is  not  such  a  bar.  Matter 
of  Pearce,  29  Hun,  270.  Contra,  Price  v.  Orcutt,  Dly.  Rgstr.,  May 
26,  1884.  As  §  2204  requires  that  the  affidavit  of  the  petitioner 
must  be  taken  on  the  day  of  the  presentation  of  the  petition,  a 


DISCHARGE   OF   AN   IMPRISONED   DEBTOR.  483 

Art.  3.     Proceedings,  Assignment,  and  Discharge. 

county  judge  ha.s  no  jurisdiction,  if  the  affidavit  was  taken  pre- 
viously to  that  date.  Shaffer  v.  Riseley,  44  Hun,  6.  But  see  same 
case  on  appeal  114  N.  Y.  23,  22  St.  Rep.  168,  16  Civ.  Pro.  369, 
supra.  See  Szvcet  v.  Norris,  19  Abb.  N.  C.  152,  12  Civ.  Pro.  175, 
for  the  statement  by  the  court  of  the  provisions  of  this  article. 
Notice  of  application  was  for  a  term  to  be  held  at  the  court- 
house ;  the  order  was  at  a  term  of  court  at  office  of  county  judge. 
Held,  that  it  was  to  be  presumed  that  such  office  was  at  the 
court-house,  and  that  the  order  was  made  at  a  regular  term  of 
the  court.  Goodwin  v.  Griffis,  88  N.  Y.  630.  The  same  case 
holds  that  where  one  of  plaintiffs  signed  an  admission  of  service 
and  he  was  sole  owner  of  judgment,  it  was  sufficient. 

Form  of  Notice  of  Motion. 


In  the  Matter  of  the  Application  of  Stephen 
Harp,  an  Insolvent  Debtor,  to  be  discharged 
from  imprisonment. 


To  Henry  G.   Williams  : 

Sir — Please  take  notice,  that  I  shall  present  to  the  Supreme  Court, 
at  the  next  Special  Term  thereof,  to  be  held  at  the  court-house  at 
Kingston,  in  the  said  county  of  Ulster,  on  the  27th  day  of  January, 
1885,  at  ten  o'clock  in  the  forenoon  on  that  day,  or  as  soon  there- 
after as  counsel  can  be  heard,  the  petition  together  with  the  account 
annexed  thereto,  with  copies  whereof  you  are  herewith  served,  and 
that  I  shall  then  and  there  apply  to  the  said  court  that  the  prayer  of 
said  petition  be  granted.  W.  S.  FREDENBURGH, 

(Dated.)  Attorney  for  Stephen  Harp. 


ARTICLE  III. 
Proceedings,  Assignment,  and  Discharge.      §§  2208-2214. 

§  2208.  Proceedings  on  presentation  of  petition. 

Upon  the  presentation  of  the  petition,  schedule,  and  affidavit,  w'ith  due  proof  of 
service  or  publication,  as  prescribed  in  the  last  three  sections,  the  court  must  make  an 
order,  directing  the  petitioner  to  be  brought  before  it,  on  a  day  designated  therein ; 
and  on  that  day,  or  on  such  other  days  as  it  appoints,  the  court  must,  in  a  summary 
way,  hear  the  allegations  and  proofs  of  the  parties.  If  the  court  is  satisfied  that  the 
petition  and  schedule  are  correct,  and  that  the  petitioner's  proceedings  are  just  and 
fair,  it  must  make  an  order,  directing  the  petitioner  to  execute  to  one  or  more  trustees, 
designated  in  the  order,  an  assignment  of  all  his  property,  not  expressly  exempt  by 
law  from  levy  and  sale  by  virtue  of  an  execution  ;  or  of  so  much  thereof  as  is  sufficient 
to  satisfy  the  execution  or  executions,  by  virtue  of  which  he  is  imprisoned. 

Art.  6,  §  6,  R.  S.,  am'd. 


484  DISCHARGE    OF   AN    lAlPkihONKD    Di.JJluR. 

Art.  3.     Proceedings,  Assignment,  and  Discharge. 
§  2209.  Adjournment. 

Upon  sufficient  cause  being  shown  by  a  creditor,  the  court  may,  from  time  to  time, 
adjourn  the  hearing ;  but  not  to  a  day  later  than  three  months  after  the  presentation 
of  the  petition. 

Id.  §  7,  am'd. 

§  2210.  Proceedings  on  adjourned  day. 

An  objection  to  a  matter  of  form  shall  not  be  received  upon  an  adjourned  day ; 
and,  unless  the  opposing  creditor  satisfies  the  court  that  the  proceedings  on  the  part 
of  the  petitioner  are  not  just  and  fair,  the  court  must  direct  an  assignment,  as  pre- 
scribed in  the  last  section  but  one,  and  must  grant  a  discharge,  as  prescribed  in  the 
following  sections  of  this  article. 

Id.  §  8. 

§  2211.  Assignment;  effect  thereof. 

The  assignment  must  be  acknowledged  or  proved,  and  certified,  in  like  manner  as  a 
deed  to  be  recorded  in  the  county,  and  must  be  recorded  in  the  clerk's  office  of  the 
county  where  the  petitioner  is  imprisoned.  Where  it  appears,  from  the  schedule  or 
otherwise,  that  real  property  will  pass  thereby,  the  assignment  must  also  be  recorded 
as  a  deed,  in  the  proper  office  for  recording  deeds,  of  each  county  where  the  real  prop- 
erty is  situated.  The  assignment  vests  in  the  trustee  or  trustees,  for  the  benefit  of  the 
judgment  creditors  in  the  executions,  by  virtue  of  which  the  petitioner  is  imprisoned, 
all  the  estate,  right,  title,  and  interest  of  the  petitioner  in  and  to  the  property,  so 
directed  to  be  assigned. 

Id.  part  of  §  9;  also  part  of  §  20,  art.  7  ;  see  §  2177. 

§  2212.  Discharge,  when  to  be  granted. 

Upon  the  production,  by  the  petitioner,  of  satisfactory  evidence,  that  the  petitioner 
has  actually  delivered  to  the  trustee  or  trustees  all  the  property  so  directed  to  be 
assigned,  which  is  capable  of  delivery;  or  upon  the  petitioner's  giving  security, 
approved  by  the  court,  for  the  future  delivery  thereof;  the  court  must  make  an  order, 
discharging  the  petitioner  from  imprisonment,  by  virtue  of  each  execution,  specified 
in  his  petition.  The  sheriff,  upon  being  served  with  a  certified  copy  of  the  order, 
must  discharge  the  petitioner  as  directed  therein,  without  any  detention  on  account 
of  fees. 

Id.  §§  10  and  11.     See  §  2200. 

§  2213.  Petitioner's  property  still  liable. 

Notwithstanding  such  a  discharge,  the  judgment  creditor  in  the  execution  has  the 
same  remedies,  against  the  property  of  the  petitioner,  for  any  sum  due  upon  his  judg- 
ment, which  he  had  before  the  execution  was  issued ;  but  the  petitioner  shall  not, 
except  as  is  otherwise  specially  prescribed  in  the  next  section,  be  again  imprisoned  by 
virtue  of  an  execution  upon  the  same  judgment,  or  arrested  in  an  action  thereupon. 

Art.  6,  §  12,  R.  S.,  am'd. 

§  2214.  When  creditor  may  issue  new  execution  against  person. 

If  the  petitioner  is  convicted  of  perjury,  committed  in  any  of  the  proceedings  upon 
his  petition,  any  judgment  creditor,  by  virtue  of  whose  execution  he  was  imprisoned, 
may  issue  a  new  execution  against  his  person. 

A  judgment  debtor  is  not  entitled  to  his  discharge  where  he  lias 
disposed  of  his  property  with  intent  to  defraud  the  creditor  at 
whose  suit  he  is  imprisoned.  Coffin  v.  Gourlay,  9  Week.  Dig. 
490;  S.  C.   20  Hun,   408.      It    is   enough  to   show  that   the  pro- 


DISCHARGE   OF   AN   IMPRISONED   DEBTOR.  485 

Art.  3.     Proceedings,  Assignment,  and  Discharge. 

ceedings  on  the  part  of  the  debtor  were  not  "just  and  fair"  if 
the  creditor  establishes  upon  the  hearing  that  the  debtor  has  dis- 
posed of  or  made  over  any  part  of  his  property  with  intent  to 
injure  or  defraud  any  of  his  creditors,  although  such  act  was  com- 
mitted before  the  commencement  of  the  action  in  which  he  is 
imprisoned,  provided  they  are  shown  to  be  so  far  connected  with 
the  action  as  to  be  grounds  for  the  order  on  which  his  imprison- 
ment was  based.  The  fraudulent  disposition  need  not  have  been 
made  with  a  view  to  his  discharge.  Matter  of  Brady,  69  N.  Y. 
215,  affirmed,  8  Hun,  437.  But  what  is  required  is  that  the  pro- 
ceedings of  the  debtor  have  been  just  and  fair.  With  respect  to 
the  matters  that  he  is  required  to  swear  to  in  the  affidavit,  there 
is  nothing  in  the  statute  that  would  authorize  holding  that  a 
debtor  cannot  be  discharged  because  he  has  made  a  false  and 
fraudulent  representation  as  to  the  solvency  of  a  person  to  whom 
credit  was  given  by  the  person  who  has  recovered  a  judgment  for 
damages  against  the  prisoner  for  the  injury  thus  sustained. 
Matter  of  Fowler,  59  How.  148. 

Still  a  discharge  will  be  refused  on  the  ground  that  a  fraudu- 
lent mortgage  of  property  was  made  before  the  commencement 
of  the  action,  but  in  view  of  its  commencement,  though  in  no 
way  connected  with  the  subject  of  the  action.  Gaul  v.  Clark,  i 
Week.  Dig.  209.  It  was  held  that  the  "  proceedings  "  referred  to 
might  be  transactions  prior  to  the  application.  Matter  of  Watson, 
2  E.  D.  S.  429.  Although  the  Marine  Court  seems  to  have  held 
a  different  rule  in  Sparks  v.  Andrews,  7  Week.  Dig.  276.  See, 
also,  People  v.  White,  14  How.  498,  and  Matter  of  Fine k,  59  id. 
145.  In  Matter  of  Fowler,  59  How.  148,  it  is  held  that  the  pro- 
ceedings are  by  this  section  required  to  be  just  and  fair  in  respect 
to  the  matters  he  is  required  to  swear  to  in  the  petition,  and  that 
the  affidavit  means  any  disposition  of  his  property  made  with 
intent  to  defraud  existing  creditors.  In  Suydam  v.  Belknap,  20 
Hun,  87,  the  Case  of  Brady,  69  N.  Y.  215,  is  distinguished.  A 
debtor's  proceedings  are  not  just  and  fair  if  he  has  procured  by 
fraud  property  from  the  execution  creditor,  or  aided  others  in  so 
doing,  but  if  he  was  innocent  of  the  fraud,  though  legally  liable 
for  the  debt,  he  may  be  discharged.  It  is  not  necessary,  how- 
ever, that  he  or  his  family  should  have  been  benefited,  to  bar  a 
discharge,  if  the  creditor  was  defrauded  by  his  act.  Matter  of 
Roberts,  59  How.    136;   Matter    of  Finck,   id.    143;  Matter   of 


486  DISCHARGE   OF   AN   IMPRISONED   DEBTOR. 

Art.  3.     Proceedings,  Assignment,  and  Discharge. 

Tomkins,  3  Law  Bull.  8.  Where  a  defaulter  could  not  account 
for  property  misappropriated,  except  as  to  a  portion  conveyed 
away,  and  not  specified  in  his  inventory,  held,  he  could  not  have 
the  benefit  of  the  act.  People  v.  White,  14  How.  498.  Where 
the  petitioner,  after  imprisonment,  filed  a  voluntary  petition  in 
bankruptcy,  and,  by  virtue  of  it,  assigned  all  his  property  to  the 
assignee  in  bankruptcy,  and  then  filed  his  petition  for  a  discharge 
under  this  act,  held,  that  such  disposition  of  his  property  was  a 
fraud  on  the  act,  and  a  ground  for  refusing  the  discharge.  •  People 
v.  Brooks,  40  How.  165  ;  Spear  v.  Wardivell,  i  N.  Y.  144;  Hall 
V.  Kellogg,  12  id.  325.  But  where  the  debtor  was  charged  in 
execution,  after  petition  filed  in  bankruptcy,  it  was  held  to  be  a 
valid  disposition  of  his  property,  and  no  bar  to  his  discharge.  A 
creditor  cannot  contest  the  discharge  who  is  in  noway  injured  or 
defrauded.  Matter  of  Brady,  69  N.  Y.  215.  Only  existing 
creditors  at  the  time  can  complain  that  the  debtor  at  one  time 
conveyed  all  his  property  with  intent  to  defraud  his  creditors. 
The  fraud  which  the  bankrupt  must  be  guilty  of  is  not  the  fraud 
in  contracting  the  debt  or  liability,  but  fraud  in  the  subsequent 
disposition  of  his  property  to  evade  such  liability.  In  re  Pearce, 
29  Hun,  270.  The  fact  tliat  the  defendant  converted  funds  re- 
ceived in  a  fiduciary  capacity  does  not  prevent  his  discharge,  as 
it  was  not  his  own  money.  Suydam  v.  Belknap,  20  Hun,  87. 
But  it  was  also  held  in  flatter  of  Tomkins,  3  Law  Bull.  8,  that 
where  a  debtor  seeks  discharge  from  imprisonment  on  a  judgment 
for  money  received  in  a  fiduciary  capacity,  he  must  show  what  he 
has  done  with  the  money.  Personal  participation  by  the  peti- 
tioner in  a  fraud  perpetrated  by  a  firm  of  which  he  was  a  member 
must  be  shown  to  justify  the  court  in  denying  a  discharge,  A 
judgment  that  the  firm  has  been  guilty  of  a  fraudulent  disposition 
of  its  property  does  not  necessarily  preclude  his  discharge  as  one 
of  the  partners.  Matter  of  Benson,  1 1  Week.  Dig.  394.  The 
General  Term  will  not  review  the  determination  of  the  county 
court,  whether  the  schedules  of  the  debtor  are  just  and  fair. 
Richmond  v.  Prai)n,  24  Hun,  578.  A  debtor  has  a  right  to 
prefer  any  creditor,  or  defeat  a  preference  to  any  creditor  by  a 
general  assignment  or  other  preference.  It  is  sufficient  if  the 
intent  be  to  pay  honest  debts.  In  re  Pearce,  29  Hun,  270 ; 
Rosivog  v.  Seymour,  7  Robt.  429 ;  Corning  v.  White,  2  Paige,  567. 
It  is  said  a  debtor  is  not  entitled  to  his  discharge  if  it  appears  he 


DISCHARGE   OF   AN   IMPRISONED    DEBTOR.  487 


Art.  3.     Proceedings,  Assignment,  and  Discharge. 


has  been  in  the  enjoyment  of  an  income,  and  expended  it  in  the 
support  of  his  family  without  any  effort  to  pay  the  judgment,  and 
the  circumstances  are  such  that  he  might  have  set  apart  a  portion 
of  his  income  to  apply  on  the  judgment,  for  omitting  to  do  so  is 
not  "just  and  fair."  Matter  of  Donoghue,  17  Abb.  N.  C.  277. 
A  debtor  cannot  be  discharged  who  has  disposed  of  his  property 
to  defraud  creditors,  whether  it  was  before  or  after  action  in  which 
he  was  arrested,  but,  to  prevent  a  discharge,  there  must  have  been 
an  intent  to  defraud  existing  creditors,  of  whom  the  creditor  con- 
testing the  discharge  must  have  been  one.  In  re  Haight,  1 1  Civ. 
Pro.  227.  A  judgment  debtor  imprisoned  under  a  judgment  for 
money  obtained  by  him  by  fraud,  who  has  used  such  money  in 
maintaining  himself  and  family,  is  deemed  to  have  disposed  of 
such  money  with  intent  to  defraud  the  creditor,  and  cannot  be 
■discharged  under  §  2200,  etc.  Following  In  re  Finck,  59  How. 
145  ;  In  re  Roberts,  id.  136;  Matter  of  Lowell,  8  Civ.  Pro.  5. 

Where  the  insolvent,  just  prior  to  a  general  assignment  by  his 
firm,  permitted  his  wife  to  withdraw  all  his  ready  money  in  the 
firm  on  account  of  indebtedness  to  her,  had  collected  firm  moneys 
and  applied  to  his  own  use,  etc.,  it  was  held  that  his  proceedings 
had  not  been  just  and  fair,  and  his  application  for  a  discharge 
denied.  In  re  Howes,  9  Civ.  Pro.  17.  In  an  action  against  a  sheriff 
for  an  escape,  the  defence  was  set  up  that  the  imprisoned  debtor 
had  been  legally  discharged,  pursuant  to  the  directions  contained 
in  Code  of  Civil  Procedure,  §  2212.  Held,  that  the  fact  that  the 
petition  for  the  discharge  was  in  writing,  and  that  a  schedule  was 
annexed  as  required  by  Code  of  Civil  Procedure,  §  2203,  being 
shown  upon  the  trial,  supplied  the  want  of  those  allegations  in  the 
order  of  discharge.  Held,  that  the  affidavit  required  to  be  an- 
nexed to  the  petition  and  schedule  by  Code  of  Civil  Procedure, 
§  2204,  must  be  subscribed  and  taken,  as  therein  provided  by  the 
petitioner  on  the  day  of  the  presentation  of  the  petition.  Held, 
that  an  order  for  the  discharge  of  an  imprisoned  debtor  which  did 
not  recite  the  fact  of  an  afifidavit  made  and  annexed,  pursuant  to 
the  provisions  of  Code  of  Civil  Procedure,  §  2204,  when,  in  fact, 
such  affidavit  was  not  made  on  the  day  therein  specified,  did  not 
protect  the  officer  making  the  discharge  as  directed.  Schaffer  v. 
Riscly,  6  State  Rep.  417. 

An  objection  to  the  discharge  of  the  debtor  on  the  ground  that 
he  has  fraudulently  transferred  his  property,  can  only  be  raised 


488  DISCHARGE   OF   AN   IMPRISONED    DEBTOR. 


Art.  3.     Proceedings,  Assignment,  and  Discharge. 


by  those  who  were  creditors  at  the  time  of  such  transfer. 
Matter  of  Pearce,  29  Hun,  270.  Where  the  petitioner  fails,  satis- 
factorily, to  account  for  his  disposition  of  a  sum  of  money 
received  by  him,  the  discharge  will  be  denied,  or  if  the  court  is 
satisfied  that  the  debtor  has  disposed  of  his  property  with  an 
intent  to  defraud  his  creditors,  or  if  it  appear  that  the  petition 
and  schedules  are  not  correct,  the  discharge  will  be  denied. 
Matter  of  Haight,  1 1  Civ.  Pro.  227.  But  the  fact  that  the  debtor 
conveyed  property  to  his  wife,  before  the  existence  of  the  debts 
owned  by  the  opposing  creditors,  will  not  prevent  a  discharge. 
Matter  of  Haight,  11  Civ.  Pro.  227.  It  has  been  held  that  if  the 
judgment  debtor  has  knowingly  expended  money  obtained  by 
fraud,  he  is  not  entitled  to  a  discharge,  nor  can  he  be  discharged 
if  he  has  invested  moneys  subsequently  acquired  in  the  name  of 
his  wife,  and  in  fraud  of  creditors.  Matter  of  Lowell,  13  Daly, 
306,  2  How.  Pr.  (N.  S.)  285,  8  Civ.  Pro.  5. 

And  it  has  been  held  that  the  debtor's  proceedings  have  not 
been  just  and  fair,  where,  on  the  eve  of  the  assignment  of  the 
firm  to  which  he  belonged,  he  had  collected  a  sum  of  money 
which  he  retained  individually  and  failed  to  account  for,  and 
where  he  had  allowed  his  wife,  a  creditor  of  the  firm,  to  draw  all 
the  ready  money  of  the  firm  before  the  failure,  and  where  he 
had  transferred  an  indebtedness  due  the  firm  from  his  daughter, 
to  his  wife's  credit,  thereby  extinguishing  the  debt.  Matter  of 
Hoiues,  9  Civ.  Pro.  17.  A  discharge  has  also  been  denied  where 
it  appeared  that  the  debtor  had  drawn  his  entire  bank  account 
immediately  after  an  adverse  verdict,  and  where  he  was  unable 
to  account  for  the  same.  Barck  v.  Senn,  Dly.  Rgstr.,  May  31st, 
1883.  It  has  been  held,  however,  that  the  debtor  will  be  dis- 
charged upon  complying  with  the  provisions  of  the  statute  and 
assigning  and  delivering  his  property,  even  though  guilty  of 
conversion  in  a  fiduciary  capacity,  where  it  does  not  appear  that 
he  has  disposed  of  his  own  property  to  the  benefit  of  himself  or 
family  with  intent  to  defraud  creditors.  Matter  of  Caamano,  8 
Civ.  Pro.  29;  2  How.  Pr.,  N.  S.,  240.  See,  also,  IVars/umer  v. 
Webb,  10  Civ.  Pro.  169,  18  Abb.  N.  C.  232  ;  People  ex  rel.  Rod- 
ding  V.  Grant,  10  Civ.  Pro.  174,  note.  Contra,  People  ex  rel. 
Lust  w.  Grant,  10  Civ.  Pro.  158.  In  proceedings  hy  certiorari 
and  habeas  corpus  to  procure  the  discharge  of  one  imprisoned, 
the  discharge  was  denied  where  the  defendant  was  imprisoned  in 


DISCHARGE   OF   AN    IMPRISONED    DEBTOR.  489 


Art.   3.     Proceedings,  Assignment,  and  Discharge. 


an   action  brought   against   him   by  his  wife  for  separation,  and 
where  he  was  a  non-resident  of  the  State,  and   the  judgment   in 
such  action  would  require  the  payment  of  aHmony  ;   failure  to  do 
which  would  be  punishable  as  a  contempt.     People  ex  rel.  Cohn 
V.  Grant,  ii    Civ.  Pro.   57,   18   Abb.  N.   C.   231  ;   compare  Dalon 
V.  Knapp,  1 1  Civ.  Pro.  59.     It  has  been  held  that  in  proceedings 
for  a  discharge   of  an   imprisoned   judgment  debtor,  under   the 
Code    provisions,  §  2200  ct  seq.,  that  it  is  error  for  the  county 
court  to  exclude  evidence  offered   relating  to   transactions  prior 
to  the  date  of  the  judgment,  in  determining   whether   the    peti- 
tioner's proceedings  have  been  just  and  fair.     Matter  of  Brown, 
39  Hun,  27.     In  this  proceeding  there  is  a  presumption    of   fair- 
ness in  favor  of  the  petitioner's  course  of  action,  and  where    the 
petitioner  was  a  member   of   the   firm,  it  is   not  enough  to  show 
that  the  firm  was  guilty  of  the  fraud,  in  order  to  prevent  his  dis- 
charge, but  it  must  be  shown  that  the  petitioner  personally  par- 
ticipated in  such  fraud.     Matter  of  Benson,  10  Daly,  166.    Where 
it    appears    that    an    imprisoned    debtor,    although    owning    no 
property  not  exempt  from  execution,  works  for  his  wife  without 
wages  upon  a  farm   owned   by   her,  and   has   good    credit,  a   dis- 
charge  will   be  refused,  on   the   ground  that  his  proceedings  are 
not  just  and  fair.     In   re  Boyce  ii  Supp.  624,    19  Civ.   Pro.   23. 
The   Court  of  Appeals  will  not  interfere  with  a  finding  of  fact 
as  to  the   intent  with   which  a  debtor  disposed  of  his  property. 
Matter  of  Sedgzvick,   12   Week.    Dig.    270.     An  adjudication  on 
the    merits    is    held    a    bar    to    future    application.     Matter   of 
Roberts,  10    Hun,  253,   59    How.    136,  reversed    70    N.    Y.  5,  but 
not   on   point   discussed  below.     In  Matter  of  Brady,  69  N.  Y. 
215,  a  proceeding  under  the  Revised   Statutes,  it  was   held   that 
the  right  to  review  a  Special  Term  decision,  in  a  matter  affecting 
a    substantial    right,   being   general    and    fundamental,    will    be 
deemed  to  exist  unless  the  intent  to  destroy  it  is  expressed  with 
great  clearness.     Where  the  petitioners  failed   to   appear  on  the 
day  to  which  the  hearing  had  been  adjourned,  and  the  proceed- 
ings were  dismissed   with   leave  to   come  in  on  terms,  and  the 
petitioner  moved  to  open  the  default,  it  was  held  that  the  court 
had  lost  jurisdiction  by  the  omission  to  adjourn  the  proceeding 
on   the   day   assigned    for  the   hearing.     Bylandt  v.  Covistock,  25 
How.    429.     And    when    the    proceedings  were   not  adjourned 
to  the  next  term,  the  adjournment  of  the  court  without  day  put 


490  DISCHARGE   OF   AN   IMPRISONED   DEBTOR. 


Art.  3.     Proceedings,  Assignment,  and  Discharge. 


an  end  to  them.  People  v.  Brooks,  40  How.  165.  The  design  of 
§  2212  is  to  leave  it  to  the  sound  discretion  of  the  court  whether 
to  require  any  security,  and,  if  any,  then  to  fix  the  form  of  the 
security  and  the  amount  according-  to  the  circumstances  of  each 
particular  case.  Roszvog  v.  Seymour,  7  Robt.  429.  The  assign- 
ment must  include  all  property  which  the  debtor  has  at  the  time 
when  it  is  ordered  and  made,  and  not  merely  such  as  he  had  at 
the  time  of  filing  the  petition.  Bort/nvick  v.  Hoivc,  27  Hun,  505. 
It  was  held  in  Re  Von  Schoening,  i  Law  Bull.  4,  that  the 
affidavit  of  the  assignee  that  the  property  of  the  debtor  had  been 
delivered  to  him  amounts  to  a  certificate  of  that  fact,  and  is  suf- 
ficient. If  the  order  is  relied  upon  without  proof  aliunde  of  the 
facts  needful  for  jurisdiction,  the  recitals  should  be  full,  but 
otherwise  no  recitals  are  absolutely  necessary.  It  is  valid  if  the 
facts  exist  which  render  it  so,  whether  recited  or  not,  but  for 
the  protection  of  the  sheriff  in  discharging  the  prisoner  it  should 
contdim  prima  facie  evidence  of  regularity  of  the  proceedings, 
and  show  sufficient  jurisdictional  facts.  Bullymore  v.  Cooper,  46 
N.  Y.  236  ;  Bennett  v.  Bureh,  i  Den.  141  ;  Devlin  v.  Cooper,  84 
N.  Y.  410.  If  the  order  for  discharge  omits  the  recital  of  a  ma- 
terial fact,  the  fact  may  be  shown  aliuneie.  Goodwin  v.  Griffis, 
88  N.  Y.  630.  The  sheriff  should  discharge  the  prisoner 
although  the  order  for  the  discharge  does  not  state  that  the  peti- 
tion was  in  writing  signed  by  the  party  with  the  schedule  annexed  ; 
the  sheriff  will  be  protected  in  an  action  for  an  escape  by  show- 
ing that  these  facts  existed.  Sehaffer  v.  Riseley,  44  Hun,  6. 
The  discharge  of  the  imprisoned  debtor  pursuant  to  this  title  of 
the  Code  does  not  discharge  his  sureties  from  liability  upon 
their  undertaking.  Prusia  v.  Broivn,  45  Hun,  81.  The  court 
must  have  satisfactory  evidence  that  the  assignment  has  been 
actually  made,  and  the  property  covered  by  the  assignment 
actually  delivered  ;  and  the  assignment  must  include,  not  only 
the  property  that  the  judgment  debtor  had  at  the  time  of  sign- 
ing  his  petition,  but  also  all  property  in  his  possession  at  the 
time  when  the  order  for  the  assignment  is  made,  Borthwick  v. 
Howe,  27  Hun,  505. 


DISCHARGE    OF    A\    IMl'KISt:)XEU    DEBTOR.  49I 


Art.  4.     Powers  and  Duties  of  Trustees. 


ARTICLE  IV. 

Powers  and  Duties  of  Trustees.    §  2215. 
§2215.  Powers  and  duties  of  trustees. 

The  trustee  must  collect  the  demands,  and  sell  the  other  property  assigned  to  him. 
He  must  apply  the  proceeds  thereof,  after  deducting  his  commissions  and  expenses 
allowed  by  law,  as  follows  : 

1.  To  the  payment  of  the  jail  fees,  upon  the  imprisonment  and  discharge  of  the 
petitioner. 

2.  If  any  surplus  remains,  to  the  payment  of  the  creditors,  by  virtue  of  whose 
executions  the  petitioner  was  imprisoned,  when  he  presented  his  petition  ;  or,  if  there 
is  not  enough  to  pay  them  in  full,  to  the  payment  to  each,  of  a  proportionate  part  of 
the  sum  due  upon  his  execution. 

3.  If  any  surplus  remains,  he  must  pay  it  over  to  the  petitioner,  or  his  executor  or 
administrator. 

Personal  service  upon  a  creditor,  or  his  attorney,  of  written  notice,  of  the  time  and 
place  of  making  a  distribution,  as  prescribed  in  subdivision  second  of  this  section,  has 
the  same  effect  as  publishing  a  notice  thereof,  in  a  case  prescribed  by  law. 

The  Revised  Statutes,  by  Article  VIII.  of  the  same  title  defining 
the  practice  as  to  insolvents,  and  for  which   the   preceding  sec- 
tions are  substituted,  defined  the  powers  and  duties  of  trustees 
of  insolvents.     The  Code  has  re-enacted,  substantially,  all  the  stat- 
utes to  which  Article  VIII.  refers,  except  the  article  as  to  attach- 
ments.    This  omission  renders  obsolete  some  portions  of  Article 
VIII.,  but  its  principal  features  remain  operative  and  must  govern 
in  determining  the  authority  of   trustees  under  the   insolvent's 
practice  as  it  now  stands.     It  first  gives  the  powers  conferred  gen- 
erally on  trustees,  by  the  court,  for  the  benefit  of  creditors,  and 
then  defines  their  authority  over  the  assigned  estate  and  method 
of  administration  with  great  minuteness  and  particularity,  and 
follows  with  details  relating  to  the  distribution  of  the  fund  and 
manner  in  which  trustees   may  be   discharged  from  their  trust. 
Chapter  158  of  Laws  of  1846  treats  of  the  same  subject-matter. 
The  statute  has  been  judiciously  construed  in  a  number  of  cases. 
As    to  the  power  of  the   court  to  compel  trustees  to  appoint 
referees,  under  §  14,  it  is  held  a  non-resident    debtor  may  have 
mandamus  for  that  purpose.      Titus  v.  Kent,    i    How.   80.     But 
such  mandamus  will  be  denied  after  the  debtor  has,  by   stipula- 
tion, adjourned  the  hearing,  and  after  evidence  has  been  gone 
into  before  the  trustees.     Matter  of  Belknap,   2    How.  200.     If 
the  trustees  err  in  the  application  of  legal  principles,   the  court 
will  correct  the  error,  but  on  a   question   of   fact    their  decision 
must  be  treated  as  a  verdict.     Matter  of  Negas,  7  Wend.  499. 


492  DISCHARGE   OF   AN   IMPRISONED    DEBTOR. 

Art.  4.     Powers  and  Duties  of  Trustees. 

Every  creditor  who  was  a  creditor  at  the  time  of  the  assign- 
ment and  whose  demand  is  existing  at  the  time  of  the  distibu- 
tion,  has  a  right  to  exhibit  his  claim  to  the  trustees,  and  upon 
having  it  allowed,  to  share  in  the  distribution.  Matter  of  Coates, 
12  How.  2)AA-  A  debt  due  from  the  debtor  for  money  received  by 
him  as  executor,  but  before  he  qualified,  is  due  from  him  in  his 
official  capacity.  Matter  of  Faulkner,  7  Hill,  181.  The  trustees 
are  entitled  to  commissions  on  the  amount  received  by  a  creditor 
by  a  compromise  with  the  debtor,  though  it  did  not  come  to  the 
trustees'  hands.  Matter  of  Biineh,  12  Wend.  280.  A  trustee 
may  maintain  an  action  of  conversion  of  personal  property  of 
the  debtor  committed  before  his  appointment.  Gillett  v.  Fair- 
child,  4  Den.  80.  To  obtain  an  examination  under  §  12,  of  the 
debtor,  his  wife,  or  others,  believed  to  secrete  property,  legal 
proof  of  concealment  is  not  necessary,  the  proof  may  be  on 
information  and  belief.  Noble  v.  Holliday,  i  N.  Y.  330.  The 
ownership  of  stock  cannot  be  summarily  tried.  Matter  of  Den- 
ney,  2  Hill,  220.  The  right  of  set-ofT  is  not  confined  to  liquidated 
debts,  but  extends  to  all  mutual  credits  between  the  original 
parties.  Holbrook  v.  Receivers,  6  Paige,  220 ;  Jones  v.  Robinson, 
26  Barb.  310.  The  statute  is  in  practice,  but  little  used,  since, 
as  is  known  to  every  practitioner,  it  is  very  rare  that  one  taking 
proceedings  to  which  it  is  applicable  has  any  assets  which  pass 
to  the  assignee.  Under  the  amendment  to  §  III,  Code  of  Civil 
Procedure,  providing  that  no  person  shall  be  imprisoned  for  more 
than  three  months,  and  that,  at  the  expiration  of  that  period, 
the  sheriff  must  release  the  prisoner,  the  occasion  for  bringing 
into  practice  the  insolvent  acts  will  doubtless  be  fewer  than 
before,  and  these  and  the  provisions  of  the  Code  on  the  subject 
be  less  resorted  to  than  heretofore.  As,  however,  these  matters 
stand  on  the  statute  books,  and  may  be  brought  into  requisition, 
it  has  been  deemed  better  to  treat  of  the  matters  in  such  a  way 
that,  if  occasion  requires,  a  complete  system  will  be  found  at 
hand.  See  Revised  Statutes  as  to  powers,  duties,  and  liabilities 
of  assignees  and  trustees  of  insolvent  debtors,  being  Art.  VIH.  of 
part  2,  chap.  5,  title  i,  Revised  Statutes,  printed  in  full  in  Fiero, 
on  Special  Actions,  vol.  2,  p.  1096.  Bliss  (Code,  vol.  3,  p.  2604) 
calls  attention  to  the  fact  that  "some  sections  of  it  (the  stat- 
ute) are,  however,  practically  superseded  by  the  fact  that  the 
first  article  of  the  title  being  that  as  to  attachments  is  repealed 


DISCHARGE   OF   AN    IMPRISONED    DEBTOR.  493 

Art.  4.     Powers  and  Duties  of  Trustees. 

and  not  re-enacted  except  as  incorporated  in  the  general  pro- 
visions as  to  attachment  under  the  Code.  Art,  IV.  of  R.  S.  is 
also  repealed  and  not  re-enacted,  except  as  covered  by  §§  2216- 
2217."  The  statute  is  there  printed  in  full,  as  is  also 
chap.  158,  §  1846,  relative  to  filling  vacancy  in  office  of  assignee 
or  trustee. 


CHAPTER  XII. 

CARE   OF  THE    PROPERTY    OF  A  PERSON  CONFINED 

FOR  CRIME. 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 


SBC 


ART.       PAGB. 

2219.  When  and  to  what  court  application  to  be  made i  494 

2220.  Who  may  apply i  494 

2221.  Creditor  must  relinquish  security I  494 

2222.  Contents  of  petition i  494 

2223.  Copy  of  sentence  and  affidavit  to  be  presented i  495 

2224.  Proceedings  upon  presentation  of  the  papers i  495 

2225.  Id. ;  on  return  of  order  to  show  cause i  495 

2226.  Effect  of  order  appointing  trustee i  495 

2227.  Removal  of  trustee  ;  appointment  of  new  trustee i  495 

2228.  Prisoner's  property ;  how  applied i  49^ 

2229.  Id. ;  to  be  delivered  to  him  on  his  discharge i  496 

2230.  Application  of  this  article  to  persons  heretofore  sentenced i  496 

§  2219.  [Am'd,  1895.]  When  and  to  what  court  application 
to  be  made. 

Where  a  person  is  imprisoned  in  a  State  prison,  for  a  term  less  than  for  life ;  or  in 
a  penitentiary  or  county  jail,  for  a  criminal  offence,  for  a  longer  term  than  one  year ; 
one  or  more  trustees,  to  take  charge  of  his  property,  may  be  appointed,  as  prescribed 
in  this  article,  by  the  county  court  of  the  county,  or  the  Supreme  Court  in  the  judi- 
cial district,  where  he  resided  at  the  time  of  his  imprisonment ;  or,  if  he  was  not  then 
a  resident  of  the  State,  where  he  is  imprisoned. 

2  R.  S.  15,  art.  I,  §  I  (2  Edm.  15)  ;  L.  1895,  ch.  946. 

§  2220.  Who  may  apply. 

A  petition  for  such  an  appointment  may  be  presented  by  either  of  the  following 
persons : 

1.  A  creditor  of  the  prisoner. 

2.  The  prisoner's  husband,  wife,  or  child. 

3.  One  or  more  of  his  next  of  kin,  or,  where  he  owns  real  property,  of  his  heirs 
presumptive. 

4.  A  relative  whom  he  is  bound  to  support. 

5.  Any  relative  or  other  person,  in  behalf  of  his  infant  child  or  children. 
Part  of  §§  I  and  4. 

§  2221.  Creditor  must  relinquish  security. 

A  creditor  of  the  prisoner,  who  has  a  judgment,  mortgage,  or  other  security,  speci- 
fied in  §  2158  of  this  act,  cannot  apply  for  such  an  appointment,  with  respect  to  the 
debt  so  secured,  unless  he  appends  to  or  includes  in  his  petition,  the  declaration,  re- 
quired by  that  section  from  a  consenting  creditor ;  which  declaration  has  the  same 
effect  as  the  declaration  of  a  consenting  creditor,  as  therein  specified. 

Art.  7,  R.  S.  §  II.     See  §  2158. 

5^  2222.  Contents  of  petition. 

The  petition  must  be  in  writing,  and  verified  by  the  affidavit  of  the  petitioner,  to  the 
effect,  that  the  matters  of  fact  therein  stated  are  true,  to  the  best  of  the  petitioner's 
494 


CARE   OF   PROPERTY   OF    PERSON   CONFINED    FOR   CRIME.   495 


Art,  I.     Copy  of  Sentence  and  Af&davit  to  be  Presented. 


knowledge  and  belief.  It  must  set  forth  the  facts,  showing  that  the  applicant  is  enti- 
tled to  make  the  application,  and  that  the  application  is  made  to  the  proper  court ; 
the  name  and  residence  of  each  person,  who  is  entitled  to  make  such  an  application, 
as  prescribed  in  the  last  section  but  one,  except  the  fifth  subdivision  thereof;  and  a 
brief  description  of  the  property,  real  and  personal,  of  the  prisoner,  and  the  value 
thereof.  If  the  applicant  is  a  creditor,  and  not  a  resident  of  the  State,  he  must  annex 
to  his  petition,  the  papers  specified  in  §  2 161  of  this  act.  If  any  of  the  facts,  herein 
required  to  be  set  forth,  cannot  be  ascertained  by  the  petitioner,  after  the  exercise  of 
due  diligence,  that  fact  must  be  stated  ;  and  the  court  may,  in  its  discretion,  issue  a 
subpoena,  requiring  any  person  to  attend  and  testify,  respecting  any  matter,  which,  in 
its  opinion,  ought  to  be  more  fully  and  certainly  set  forth. 
See  §  2161. 

§  2223.  Copy  of  sentence  and  afladavit  to  be  presented. 

The  petition  must  be  accompanied  with  a  copy  of  the  sentence  of  conviction  of  the 
prisoner,  duly  certified  by  the  clerk  of  the  court  by  which  he  was  sentenced  under  the 
seal  thereof ;  together  with  an  affidavit  of  the  applicant,  stating  that  the  person  so 
convicted  is  actually  imprisoned  thereunder. 

Art.  2,  R.  S.  §  2,  in  part. 

§  2224.  Proceedings  upon  presentation  of  the  papers. 

Upon  the  presentation  of  the  papers,  the  court  may,  in  its  discretion,  make  an  order, 
either  appointing  one  or  more  fit  persons  trustees  of  the  property  of  the  prisoner ;  or 
requiring  all  creditors  of  the  prisoner,  and  all  persons  interested  in  his  estate,  to  show 
cause,  at  a  time  and  place  specified  therein,  why  such  an  appointment  should  not  be 
made.  In  the  latter  case,  the  order  must  direct  the  manner  of  service  thereof,  by  pub- 
lication or  otherwise. 

Id.  part  of  §  2. 

§  2225.  Id.;  on  return  of  order  to  show  cause. 

Upon  the  return  of  an  order  to  show  cause,  made  as  prescribed  in  the  last  section, 
proof  of  the  service  thereof,  as  required  thereby,  must  first  be  made ;  whereupon  the 
court  must  hear  the  allegations  and  proofs  of  the  creditors  and  other  persons  interested 
in  the  estate,  who  appear.  Where  the  prisoner  is  indebted  to  any  person,  the  court 
must  appoint  one  or  more  trustees,  unless  the  persons  interested  in  the  prisoner's  prop- 
erty pay  the  debt,  or  give  such  security,  as  the  court  prescribes,  for  the  payment  thereof, 
either  absolutely,  or  contingently  upon  a  recovery  in  an  action  ;  in  which  case,  or  where 
the  prisoner  is  not  indebted,  the  court  may  grant  or  delay  the  prayer  of  the  petition, 
as  justice  requires. 

§  2226.  Effect  of  order  appointing  trustee. 

The  entry  of  the  order,  appointing  one  or  more  trustees,  and  the  filing  of  the  papers 
upon  which  it  was  granted,  vest  in  the  trustee  or  trustees  all  the  right,  title,  and  in- 
terest of  the  prisoner,  in  and  to  any  property,  real  or  personal.  Where  the  prisoner 
owns  real  property,  an  exemplified  copy  of  the  order  must  be  recorded  in  the  property 
office  for  recording  deeds,  in  each  county  where  the  real  property  is  situated. 

Art.  2,  R.  S.  §  3.     See  §  2177. 

§  2227.  Removal  of  trustee  ;  appointment  of  new  trustee. 

Upon  the  application  of  any  person  entitled  to  apply  for  an  order,  appointing  trus- 
tees of  the  prisoner's  property,  and  upon  such  a  notice  as  the  court  prescribes,  to  the 
petitioner,  and  to  such  other  persons  interested,  as  the  court  thinks  proper  to  desig- 
nate, the  court,  by  which  the  order  was  granted,  may,  in  its  discretion,  remove  any 
trustee,  and  appoint  another  in  his  place ;  or  may  appoint  one  or  more  additional 


496   CARE   OF    PROPERTY   OF   PERSON    CONFINED   FOR   CRIME. 


Art.   I.     Precedent  for  Petition  by  Creditor. 


trustees.  The  new  trustee  or  trustees,  so  appointed,  have  the  same  power  and  au- 
thority, are  vested  with  the  same  right,  title,  and  interest,  and  are  subject  to  the  same 
duties  and  liabilities,  as  if  he  or  they  had  been  appointed  by  the  original  order. 

§  2228.  Prisoner's  property ;  how  applied. 

After  deducting  their  commissions  and  expenses,  allowed  by  law,  and  paying  the 
prisoner's  debts,  the  trustees  may,  from  time  to  time,  under  the  direction  of  the  court 
by  which  they  were  appointed,  apply  the  surplus  of  any  money  in  their  hands,  to  the 
support  of  the  prisoner's  wife  and  children,  and  of  such  other  relatives  as  he  is  bound 
to  support,  and  to  the  education  of  his  children. 

Part  of  §  4,  art.  2,  R.  S. 

§  2229.  Id. ;  to  be  delivered  to  him  on  his  discharge. 

When  the  prisoner  dies,  or  is  lawfully  discharged  from  imprisonment,  the  trustee 
or  trustees  must  deliver  over  to  him,  or  to  his  legal  representatives,  all  his  property, 
remaining  in  their  hands,  after  deducting  therefrom  their  lawful  expenses  and  com- 
missions. 

Id.  §15. 

i^  2230.  Application  of  this  article  to  persons  heretofore  sen- 
tenced. 

This  article  applies  to  a  prisoner  who  has  been  sentenced  before  this  chapter  takes 
effect,  and  to  his  property ;  except  where  one  or  more  trustees  of  his  property  have 
been  theretofore  appointed,  by  proceedings  taken  in  pursuance  of  a  statute  then  in 
force. 

Under  the  Revised  Statutes,  the  article  for  which  this  provi- 
sion is  a  substitute  provided  for  the  appointment  of  trustees  of 
the  property  of  a  criminal  only  where  he  was  indebted  to  some 
person  ;  but  the  appointment  might  be  made  at  the  instance  of 
"any  of  the  criminal's  relatives,  or  any  relative  of  his  wife,"  and 
the  application  of  the  property,  after  the  payment  of  the  crim- 
inal's debts,  is  directed  to  be  made  to  the  support  of  his  family. 
The  codifiers  give  at  considerable  length  their  reasons  for  ex- 
tending the  right  to  make  the  application  to  the  persons  named 
in  §  2220.  They  also  comment  upon  the  fact  that  under  the 
Revised  Statutes  the  proceedings  were  loose,  and  opened  the 
door  to  many  abuses  where  the  property  to  be  sequestrated  was 
of  any  considerable  amount,  which  was  doubtless  owing  to  the 
fact  that  at  the  date  of  the  enactment  it  rarely  happened  that 
the  person  convicted  of  a  criminal  offence  was  possessed  of  much 
property ;  such  cases  being  now  of  more  frequent  occurrence, 
the  proceeding  has  been  revised  so  as  to  secure  greater  certainty 
and  fairness. 

Precedent  for  Petition  by  Creditor. 

To  the  County  Court  of  the  County  of  Ulster : 

The  petition  of  Margaret  Haskins,  as  administratrix  of,  etc.,  of  John 


CARE   OF   PROPERTY   OF   PERSON   CONFINED    FOR   CRIME.   497 


Art.   I.     Affidavit  of  Applicant  Showing  Imprisonment. 


Haskins,  deceased,  respectfully  shows  that  she  was  appointed  adminis- 
tratrix of  the  said  John  Haskins,  deceased,  on  the  loth  day  of  January, 
1887,  and  qualitied  and  entered  upon  her  duties  as  such  administratrix, 
and  that  as  such  administratrix  she  is  a  creditor  of  Patrick  Larkin  for 
the  sum  of  $552.50.  That  the  said  indebtedness  arose  upon  a  promis- 
sory note,  a  sworn  copy  of  which  is  hereto  annexed,  the  amount  due 
being  for  the  principal  thereof  and  interest  from  July  17,  1885.  That 
the  said  Patrick  Larkin  is  imprisoned  in  the  State  prison  at  Danne- 
mora  for  the  term  of  ten  years,  from  the  15th  day  of  April,  1887,  under 
the  sentence  of  the  Court  of  Oyer  and  Terminer,  held  in  and  for  the 
county  of  Ulster,  for  the  offence  of  manslaughter,  as  will  more  fully  ap- 
pear from  the  copy  of  the  sentence  of  conviction  of  said  Patrick  Larkin, 
annexed  to  and  accompanying  this  petition,  duly  certified  by  the  clerk 
of  the  county  of  Ulster  under  the  seal  of  said  Court  of  Oyer  and  Ter- 
miner. That,  at  the  time  of  his  conviction  and  imprisonment,  the  said 
Patrick  Larkin  resided  at  the  city  of  Kingston,  in  the  county  of  Ulster, 
and  that  your  petitioner  resides  at  the  same  place  aforesaid. 

That  the  wife  of  said  Patrick  Larkin  is  Cornelia  Larkin,  and  his  chil- 
dren are  Sarah  Larkin,  Nellie  Larkin,  and  Martin. Larkin,  all  residing  at 
the  city  of  Kingston  aforesaid,  they  being  the  only  next  of  kin  and  heirs 
at  law  of  said  Patrick  Larkin.  That  there  are  no  other  relatives  whom 
he  is  bound  to  support.  That  the  names  of  his  creditors  are  Charles 
G.  Martin,  Willis  L.  Nichols,  and  Thomas  C.  Sheridan,  all  residing  at 
said  city  of  Kingston,  and  Matthew  Knapp  and  Charles  M.  Peterson, 
residing  at  the  city  of  New  York. 

That  the  said  Patrick  Larkin  is  the  owner  of  a  farm  of  land,  situate 
in  the  town  of  Ulster,  in  said  county,  and  described  as  follows :  (insert 
description) ;  that  he  is  the  owner  and  holder  of  the  following  personal 
property  and  securities :  (give  schedule). 

Wherefore,  your  petitioner  prays  the  order  of  this  court  appointing 
one  or  more  fit  persons  trustees  to  take  charge  of  the  property  of  the  said 
Patrick  Larkin,  as  prescribed  by  Article  IV.  of  title  i  of  chapter  1 7  of  the 
Code  of  Civil  Procedure. 

Dated  May  11,  1887.  MARGARET  HASKINS. 

Ulster  County,  ss.  : 

Margaret  Haskins,  being  duly  sworn,  says  that  she  is  the  petitioner 
named  in  the  foregoing  petition  subscribed  by  her,  and  that  the  matters 
of  fact  therein  alleged  are  true  to  the  best  of  her  knowledge  and  belief. 

(Add Jura f.)  MARGARET  HASKINS. 

(Annex  certified  copy  of  sentence  of  conviction  and  affidavit?) 

Affidavit  of  Applicant  Showing  Imprisonment. 

Ulster  County,  ss.  : 

Margaret  Haskins,  being  duly  sworn,  says  that  she  is  the  person 
petitioning  for  the  appointment  of  a  trustee  to  take  charge  of  the  prop- 
erty of  Patrick  Larkin,  an  imprisoned  debtor,  pursuant  to  the  provisions 
of  the  Code  of  Civil  Procedure ;  that  the  said  Patrick  Larkin  is  now 
actually  confined  in  the  State  prison  at  Dannemora,  in  this  State,  under 
32 


498   CARE   OF   PROPERTY   OF   PERSON   CONFINED   FOR   CRIME. 

Art.   I.     Order  to  Show  Cause. 

and  by  virtue  of  the   sentence  of  conviction  for  manslaughter  by  the 
Court  of  Oyer  and  Terminer,  a  copy  of  which  is  hereto  annexed. 
{Jurat.)  MARGARET  HASKINS. 

Order  to  Show  Cause. 

At  a  term  of  the  Ulster  County  court,  held  at  the  chambers  of  the 
county  judge,  in  the  city  of  Kingston,  on  the  14th  day  of  May, 
1882: 

Present : — Hon.  William  S.  Kenyon,  County  Judge. 


In  the  Matter  of  the  Application  of  Margaret 
Haskins  for  the  appointment  of  a  Trustee  to 
take  charge  of  the  property  of  Patrick  Larkin, 
an  imprisoned  debtor. 


On  reading  and  filing  the  petition  of  Margaret  Haskins,  dated  and 
verified  May  11,  1887,  praying  for  the  appointment  of  one  or  more  trus- 
tees to  take  charge  of  the  property  of  Patrick  Larkin,  an  imprisoned 
debtor,  and  showing  that  he  is  imprisoned  in  a  State  prison  under  a  ten 
years'  sentence  ;  that  he  as  well  as  the  petitioner  were  residents  of  the 
county  of  Ulster  at  the  time  of  such  sentence,  and  giving  the  names  of 
his  relatives,  next  of  kin,  and  creditors,  together  with  a  certified  copy  of 
the  sentence  of  conviction  thereto  annexed,  and  the  affidavit  of  the  ap- 
plicant that  said  Larkin  is  now  actually  imprisoned  under  said  sentence, 
and  on  motion  of  G.  D.  B.  Hasbrouck,  of  counsel  for  said  petitioner, 
it  is 

Ordered,  that  all  creditors  of  said  Patrick  Larkin  and  all  persons  in- 
terested in  his  estate  show  cause  at  a  term  of  this  court,  to  be  held  at 
the  chambers  of  the  judge,  in  the  city  of  Kingston,  on  the'i5th  day  of 
June,  1887,  at  ten  o'clock  a.  m.  of  that  day,  why  such  trustee  should  not 
be  appointed  according  to  the  prayer  of  said  petitioner.  It  is  further 
ordered  that  personal  service  of  a  copy  of  this  order  be  made  upon  each 
of  the  creditors  of  said  Patrick  Larkin  and  all  persons  interested  in  his 
estate,  at  least  ten  days  before  said  15th  day  of  June,  1887. 

WM.  S.   KENYON, 

County  Judge  of  Ulster  County. 

Order  Appointing  Trustee  on  Return  of  Order  to  Show  Cause. 

At  a  term  of  the  Ulster  County  court,  held  at  the  chambers  of  the 
county  judge,  in  the  city  of  Kingston,  on  the  15th  day  of  July, 
1887: 

Present : — Hon.  William  S.  Kenyon,  County  Judge. 

In  the  Matter  of  the  Application  of  Margaret 
Haskins  for  the  appointment  of  a  Trustee  to 
take  charge  of  the  property  of  Patrick  Larkin, 
an  imprisoned  debtor. 


On  the  return  of  the  order  to  show  cause  herein  granted  on  the  14th 


CARE   OF   PROPERTY   OF   PERSON   CONFINED   FOR   CRIME.    499 

Art.   I.    Order  Appointing  Trustee  on  Return  of  Order  to  Show  Cause. 

day  of  May,  1887,  with  due  proof  of  personal  service  thereof  on  (name 
persons  served),  at  least  ten  days  before  this  date :  Now,  on  reading 
and  filing  the  petition,  order,  and  affidavit  on  which  the  order  to  show 
cause  was  granted,  and  it  appearing  that  Patrick  Larkin  is  actually  im- 
prisoned in  a  State  prison  under  a  sentence  for  more  than  one  year,  and 
after  hearing  D.  W.  Roosa,  Esq.,  on  behalf  of  the  creditor,  Charles  M. 
Peterson,  no  one  else  appearing: 

On  motion  of  G.  D.  B.  Hasbrouck,  attorney  for  the  petitioner,  it  is 
ordered  that  Carey  S.  Connelly,  of  the  town  of  Esopus,  in  the  county  of 
Ulster,  be  and  he  is  hereby  appointed  a  trustee  of  the  property  of  said 
Patrick  Larkin,  pursuant  to  the  provisions  of  Article  IV.  of  title  i ,  chapter 
17,  of  the  Code  of  Civil  Procedure. 

WILLIAM  S.  KENYON, 

County  yudge  of  Ulster  County. 


CHAPTER  XIII. 

SUMMARY  PROCEEDINGS  TO  RECOVER  THE  POSSESSION 

OF  LAND.* 

PAGE. 

Article  i.   Character  of  proceeding 501 

2.  When  tenant  may  be  removed.      §2231 502 

3.  When  person   continuing  in  possession  of  real  prop- 

erty may  be  removed.      §§  2232,  2233 511 

4.  To  what  officer  or  court  appHcation  may  be  made. 

§  2234 517 

5.  Petition  by  person  entitled  to  possession.      §§  2235, 

2236,  2237.      Chap.  303,  L.  1882  ;   2  R.  S.  (7th  ed. ) 

§   7 518 

6.  Precept,  and  how  served.   §§  2238,  2239,  2240,  2241, 

2242,  2243 535 

7.  Answer  and  defences.      §§  2244,  2245 543 

8.  Trial  and  miscellaneous  provisions.     §§  2246,  2247, 

2248 547 

9.  Final  order  and  its  effect.      §§  2249,  2250,  2.264 552 

10.  Warrant    and    how    proceedings    stayed.      §§   2251, 

2252,  2253.  2254.  2255,  2265 555 

11.  Redemption.      §§   2256,  2257,  2258,  2259 562 

12.  Appeal,  and   rrstitution.      §§  2260,  2261,  2262,   2263.  565 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 


ART.    PAGB. 


SBC. 

2231 .  When  tenant  may  be  removed 2  502 

2232.  Person  holding  over  land  sold,  etc.,  may  be  removed 3  511 

2233.  Id. ;  in  case  of  forcible  entry  or  detainer 3  512 

2234.  Application  ;  to  whom  made 4  5'7 

2235.  Petition  by  person  entitled  to  possession 5  518 

2236.  Notice  to  be  given  in  certain  cases 5  5'9 

2237.  Petition  by  neighbor  of  bawdy-house,  etc 5  5^9 

2238.  Precept 6  535 

2239.  Id. ;  in  New  York  City ■  -  6  535 

2240.  Id. ;  how  served 6  535 

2241.  Duty  of  person  to  whom  copy  of  precept  is  delivered 6  536 

2242.  When  precept  to  be  served  on  landlord  of  bawdy-house,  etc 6  536 

2243.  Proof  of  service  of  precept ^J  53" 

2244.  Answer 7  54' 

2245.  Issues  upon  forcible  entry  or  detainer 7  543 

*The  works  of  McAdam,  Taylor,  and  Wood  resi^ectively  on  I^aiidlord  and  Tenant 
treat  this  subject  more  or  less  fully.     -See,  also,  American  and  English  Encyclopedia 
of  Law,  Article  "  Landlord  und  Tenant." 
500 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    501 
Art.   I.     Character  of  Proceedings. 

SBC.  ART.   PAGE. 

2246.  In  N.  Y.  district  court  cause  may  be  transferred  to  another  court  for 

trial 8  547 

2247.  Trial 8  547 

2248.  Adjournment 8  548 

2249.  Final  order  upon  trial 9  553 

2250.  Amount  of  costs ;  how  collected 9  552 

2251 .  Warrant  to  dispossess  defendant 10  555 

2252.  E.xecution  of  warrant 10  555 

2253.  When  warrant  cancels  lease  ;  exception 10  555 

2254.  Warrant ;  when  and  how  stayed 10  555 

2255.  Undertaking  ;  how  disposed  of 10  555 

2256.  Redemption  by  lessee 11  562 

2257.  Id. ;  by  creditor  of  lessee 11  562 

2258.  The  last  two  sections  qualified 11  563 

2259.  Order  to  be  made  thereupon  ;  liability  of  person  redeeming 11  563 

2260.  Appeal 12  565 

2261.  Effect  of  appeal  limited  in  certain  cases 12  565 

2262.  Warrants ;  how  stayed  on  appeal 12  565 

2263.  Appellate  court  may  award  restitution ;  action  for  damages 12  566 

2264.  Application  of  thi  s  title  ;  effect  of  final  order 9  552 

2265.  How  proceedings  under  this  title  to  be  stayed 10  556 

ARTICLE  I. 

Character  of  Proceeding. 

This  title  is  a  substitute  for  two  articles  of  the  Revised  Statutes, 
the  first  treating  of  "  forcible  entries  and  detainers,"  and  the  sec- 
ond of  summary  proceedings  to  recover  the  possession  of  land  in 
other  cases.  The  revisers  deemed  separate  and  distinct  proceed- 
ings unnecessary,  and  have  embodied  the  necessary  steps  to  ob- 
tain possession  of  real  estate  in  a  summary  manner,  in  a  single 
statutory  enactment.  They  have  also  included  the  substance  of  a 
large  number  of  amendatory  acts,  and  much  condensed  the  pro- 
visions by  amendments  to  the  language  used,  and  the  consolida- 
tion of  similar  provisions  relating  to  separate  subjects,  as  well  as 
by  the  omission  of  what  they  deemed  superfluous  provisions. 
These  proceedings  are  entirely  statutory,  and  must  be  conducted 
in  strict  accordance  with  the  law.  Miner  v.  Burling,  32  Barb.  540 ; 
Coatsworth  v.  Thompson,  5  State  Rep.  809.  The  statutory  remedy 
by  way  of  sunamary  proceeding  is  in  derogation  of  the  common- 
law  remedy  by  action,  and  must  be  strictly  construed  ;  a  peculiar 
and  limited  jurisdiction  is  thereby  conferred  on  certain  magistrates, 
which  can  be  executed  only  in  the  way  pr'^scribed.  Benjamin  v. 
Benjamin,  5  N.  Y.  385. 


502    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.   2.     When  Tenant  may  be  Removed. 


Where  summary  proceedings  are  brought  to  recover  land  a  jus- 
tice is  not  ousted  of  jurisdiction  because  the  title  of  the  land 
comes  into  question.  The  provisions  of  the  Code  relating  to  the 
dismissal  of  an  action  where  the  question  of  title  arises  relate  ex- 
clusively to  civil  actions,  and  do  not  apply  to  summary  proceed- 
ings. Where  a  life  tenant  leases  premises,  and  after  his  death  the 
guardian  of  the  infant  remainderman  permits  the  tenant  to  re- 
main in  possession  until  the  infant  attains  a  majority  and  she 
thereafter  demands  rent,  the  facts  establish  the  conventional  rela- 
tion of  landlord  and  tenant  and  enable  her  to  maintain  summary 
proceedings.  Dorsclielv.  Bnrkly,  i8  Misc.  240;  Matter  of  White, 
12  Abb.  N.  C.  348;  Lowinan  v,  Sprague,  73  Hun,  408;  People  ex 
rel.  Vogler  v.  Palmer,  16  Hun,  136;  Benjamin  v.  Benjamin,  5  N.  Y. 
388;  People  ex  rel.  Hannigan  v.  Ingersoll,  20  Hun,  316. 

ARTICLE  n. 
When  Tenant  may  be  Removed.    §  2231. 

g  2231.  When  tenant  may  be  removed. 

In  either  of  the  following  cases,  a  tenant  or  lessee  at  will,  or  at  sufferance,  or  for 
part  of  a  year,  or  for  one  or  more  years,  of  real  property,  including  a  specific  or  undi- 
vided portion  of  a  house,  or  other  dwelling,  and  his  assigns,  under-tenants,  or  legal 
representatives,  may  be  removed  therefrom,  as  prescribed  in  this  title  : 

1.  [Am'd,  1894.]  Where  he  holds  over  and  continues  in  possession  of  the  de- 
mised premises,  or  any  portion  thereof,  after  the  expiration  of  his  term,  without  the 
permission  of  the  landlord ;  including,  elsewhere  than  in  the  city  of  New  York  and 
Brooklyn,  a  case  where  the  person  to  be  removed  became  the  occupant  of  the 
premises  as  a  servant  or  employe  and  the  relation  of  master  and  servant  or  employer 
and  employe  has  been  lawfully  terminated  or  the  time  fixed  for  such  occupancy  by 
the  agreement  between  the  parties,  has  expired ;  but  if  by  such  agreement  the  servant 
was  to  be  permitted  to  occupy  such  premises  for  a  period  beyond  the  term  of  employ- 
ment such  removal  shall  not  be  had  under  this  subdivision  unless  such  period  so  per- 
mitted for  occupancy  has  expired,  or  the  relation  of  master  and  servant  or  employer 
and  employe  was  lawfully  terminated  before  the  expiration  of  such  term  of  employ- 
ment ;  but  nothing  in  this  subdivision  contained  shall  be  construed  as  preventing  the 
removal  of  such  occupant  in  any  other  lawful  manner. 

L.  1894,  ch.  333. 

2.  Where  he  holds  over,  without  the  like  permission,  after  a  default  in  the  payment 
of  rent,  pursuant  to  the  agreement  under  which  the  demised  premises  are  held,  and  a 
demand  of  the  rent  has  been  made,  or  at  least  three  days'  notice  in  writing,  requiring, 
in  the  alternative,  the  payment  of  the  rent,  or  the  possession  of  the  premises,  has 
been  served,  in  behalf  of  the  person  entitled  to  the  rent,  upon  the  person  owing  it,  as 
prescribed  in  this  title  for  the  service  of  a  precept. 

3.  Where  in  any  city  in  this  State  he  holds  over  and  continues  in  possession  of  the 
demised  premises,  or  any  portion  thereof,  after  default  in  the  payment,  for  sixty  days 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    503 


Art.   2.     When  Tenant  may  be  Removed. 


after  the  same  shall  be  payable,  of  any  taxes  or  assessments  levied  on  such  demised 
premises  which  he  has  agreed  in  writing  to  pay  pursuant  to  the  agreement  under 
which  the  demised  premises  are  held,  and  a  demand  for  the  payment  of  such  taxes  or 
assessments  has  been  made,  or  at  least  three  days'  notice  in  writing,  requiring,  in  the 
alternative,  the  payment  thereof  and  of  any  interest  and  penalty  thereon,  or  the 
possession  of  the  premises,  has  been  served,  in  behalf  of  the  landlord,  upon  the  lessee, 
as  prescribed  in  this  title  for  the  service  of  a  precept.  An  acceptance  of  any  rent  by 
the  lessor  or  his  legal  representatives  shall  not  be  construed  as  a  waiver  of  the  agree- 
ment of  the  lessee  to  pay  taxes  or  assessments,  so  as  to  preclude  the  lessor  from  the 
benefits  of  this  chapter. 

4.  Where  he,  being  in  possession  under  a  lease  for  a  term  of  three  years  or  less, 
has,  during  the  term,  taken  the  benefit  of  an  insolvent  act,  or  has  been  adjudicated  a 
bankrupt,  under  a  bankrupt  law  of  the  United  States. 

5.  Where  the  demised  premises,  or  any  part  thereof,  are  used  or  occupied  as  a 
bawdy-house  or  house  of  assignation  for  lewd  persons,  or  for  any  illegal  trade  or 
manufacture,or  other  illegal  business. 

2  R.  S.  512,  §  28  (2  Edm.  529),  am'd;  L.  1849,  ch.  193;  also,  §  55,  added  by  L.  1868, 
ch.  764,  §  I  (7  Edm.  335),  and  L.  1873,  ch.  583,  §  i  (9  Edm.  653),  consoUdated  and 
am'd. 

The  statute  applies  only  where  the  conventional  relation  of 
landlord  and  tenant  exists,  not  in  every  case  where  ownership  is 
in  one  and  possession  in  another ;  but  only  where  he  who  is  in 
possession  has,  by  sonne  act  or  agreement,  recognized  the  other 
as  his  landlord,  and  assumed  the  character  of  a  tenant  under 
him,  so  that  he  is  not  at  liberty  to  dispute  his  title.  It  must  be 
by  agreement  and  not  by  operation  of  law.  People  v.  Annis,  45 
Barb.  304;  Bcnjauiin  v.  Benjamin,  5  N.  Y.  383  ;  Roach  v.  Cosine, 
9  Wend.  227;  People  v.  Cnsli/nan,  i  Hun,  73  ;  Sims  v.  Humphrey, 
4  Denio,  185  ;  People  v.  Bigeloiv,  ii  How.  83  ;  People  v.  Hovey,  4 
Lans.  86;  Livingston  v.  Tanner,  14  N.  Y.  64;  Doolittle  v.  Eddy, 
7  Barb.  74;  Keneda  v.  Gardner,  3  id.  589;  People  v.  Simpson,  37 
id.  432  ;  Evert  son  v.  Sntton,  5  Wend.  281  ;  Wright  v.  Mosher,  16 
id.  454;  People  v.  Simpson,  28  N.  Y.  55;  Russell  v.  Russell,  32 
How.  400.  A  purchaser  of  leased  premises  may  maintain  sum- 
mary proceedings  for  non-payment  of  rent  based  upon  failure  to 
pay  rent  falling  due  since'  its  purchase,  and  also  prior  rents 
assigned  to  him  by  his  grantor.  Ottinger  v.  Prince,  2  City  Court, 
353.  A  tenant  may  be  disposed  for  non-payment  of  part  of  the 
rent  where  he  agrees  to  pay  part  in  board  furnished  the  landlord 
•and  part  in  cash  ;  he  may  be  disposed  for  non-payment  of  the 
cash.  Mahan  v.  Sewell,  6  Supp.  662,  25  St.  R.  930.  Occupancy 
on  shares  comes  within  the  act  of  summary  dispossession  of  ten- 
ants. Barry  v.  Smith,  69  Hun,  88,  53  St.  Rep.  57,  23  Supp.  261, 
affirming  i  Misc.  240,  53  St.  Rep.  57,  22  Supp.  129.      To  hold  a 


504   PROCEEDINGS   TO    RECOVER   THE    POSSESSION    OF   LAND. 


Art.   2.     When  Tenant  may  be  Removed, 


tenant  liable  for  ejectment  for  keeping  a  house  of  assignation, 
knowledge  of  the  acts  complained  of  must  be  brought  home  to 
him,  and  it  must  be  shown  that  he  had  authority  to  prevent 
them.  Moench  v.  Young,  i6  Daly,  143,  29  St.  Rep.  731,  8  Supp. 
532.  But  it  is  no  defence  to  summary  proceedings  taken  upon 
the  ground  that  the  house  was  used  as  a  house  of  assignation 
that  the  tenant  has  discontinued  the  business  before  the  trial. 
Stearns  v.  Hemmens,  21  Abb.  N.  C.  312,  i  Supp.  52,  16  St.  Rep. 
701,  14  Daly,  501. 

Where  the   lease   provided  that   if  the  landlord  deemed  the 
tenancy    undesirable    the    premises   would    be    vacated    on    two 
months'  notice  in  writing,  the  landlord  is  not  bound  to  give  any 
grounds   for  deeming   the   tenancy   undesirable.     Manhattan  L. 
Ins.  Co.  v.  Gosford,  3  Misc.  509,  52  St.  Rep.  419,  23  Supp.  7.     In 
proceedings   to   remove    a  tenant    and    under-tenant    as  holding 
over,  the  under-tenant  set  up  that  he  was  a  tenant  and  had  paid 
rent,  but  it  was  shown  that  he  was   a  tenant    of   the   lessee,  and 
that  the  lease  having  expired  it  was  a  proper  case  for  summary 
proceedings.     O'Connor  v.  Schmita,  36  St.   Rep.  317,   13   Supp. 
442.     In   Brown  v.  Sullivan,   i    Misc.   161,  48   St.   Rep.  685,  20 
Supp.  634,  the  question  of  the  genuineness   of   the  signature  of 
the  grantor  was  in  question,  and  it  was  held   that  the  weight  of 
evidence  was  in  favor  of  the  genuineness   of   the  lease.     Where 
the  United  States  Government  leases  a  part  of  the  government 
property,  it  was  held  that  the   State   courts  had  jurisdiction   in 
summary  proceedings.     Lotterlee  w.  Murphy,  67   Hun,  76,  51   St. 
Rep.  553,  21  Supp.  1120.     The  right  to  re-enter  after  breach  of 
condition  subsequent  is  not  assignable  to  or  enforceable  by  one 
not   vested    with    a   reversionary  estate.     Kelly  v.  Smith,  41    St. 
Rep.  620,  16  Supp.  521.     Where  the  mortgagee  of  the  premises 
held  a  power  of  attorney  from   the  landlord  to  rent  the  premises 
and  apply  any  rent  on  the  mortgage,  and   to   let   the  premises,  it 
was  held  that  the  relation   of   landlord   and   tenant  did  not  exist 
between  him  and  the  person  to  whom  the  premises  were  let,  and 
that  he  could  not   maintain   summary   proceedings.     Matter  of 
Hosley,  56  Hun,  240,  30  St.  Rep.   711,  9   Supp.   752.     Summary 
proceedings   for  non-payment   of   rent   may   be    maintained,  al- 
though  the   landlord    demanded    less   than    was    due   and   was 
refused.     Sheldon  v.  Testera,  21  Misc.  477,  47  Supp.  653.     If  the 
term  is  indefinite  the  fact  that  the  rent   is  payable   monthly  is 


PROCEEDINGS   TO    RECOVER    THE    POSSESSION   OF   LAND.    505 

Art.   2.     When  Tenant  may  be  Removed. 

not  conclusive  of  a  letting  from  month  to  month.  Cohen  v. 
Green,  21  Misc.  334,  47  Supp.  136. 

A  sub-tenant,  who  holds  under  an  assignee  of  the  original 
lessee,  is  liable  to  be  dispossessed  for  non-payment  of  rent  at  the 
suit  of  his  lessor's  subsequent  assignee  ;  he  cannot  gainsay  his 
title.  People  v.  Angel,  61  How.  157.  The  relation  of  landlord 
and  tenant  exists  between  the  lessee,  or  his  assignee,  and  the 
assignee  or  grantor  of  the  lessor,  provided  such  relation  existed 
between  the  original  parties.  Birdsall  v.  Phillips,  17  Wend.  473  ; 
Miller  v.  Levi,  44  N.  Y.  489.  A  landlord  may  institute  proceed- 
ings to  recover  possession  for  non-payment  of  rent,  notwith- 
standing a  covenant  to  pay  for  improvements  at  the  expiration 
of  the  term.  Paine  v.  Trinity  Church,  7  Hun,  89.  Where  a 
tenant  holding  under  one  landlord  took  a  lease  from  another, 
and  surrendered  to  his  first  lessor,  the  latter  cannot  be  dispos- 
sessed as  the  tenant  of  the  second  lessor.  Freeman  v.  Ogden,  40 
N.  Y.  105.  If  a  tenant  abandons  possession  before  the  expiration 
of  his  lease,  and  another  immediately  takes  possession  without 
his  privity  or  consent,  no  such  relation  arises  as  authorizes  the 
lessor  to  remove  him  for  holding  over  the  term  ;  a  verbal  declara- 
tion, made  by  the  intruder  at  the  time  he  took  possession,  that 
he  did  so  under  the  former  tenant,  could  not  create  the  relation 
of  landlord  and  tenant.  People  v.  Hovey,  4  Lans.  399.  Where  a 
lease  is  given  to  commence  on  the  termination  of  an  existing 
lease,  the  original  lessee  cannot  be  dispossessed  by  the  new  one. 
Inibcrt  V.  Hallock,  23  How.  456.  Where  the  party  in  possession 
had  conveyed  the  fee  by  a  deed,  agreeing  that  he  should  retain 
possession  till  a  day  fixed,  it  did  not  constitute  a  tenancy.  SiiJis 
V.  Humphrey,  4  Den.  85.  Nor  does  a  purchaser  under  an  execu- 
tory contract,  under  which  he  is  in  possession,  become  a  tenant 
by  breach  of  his  contract,  so  that  summary  proceedings  will  lie. 
People  V.  Bigeloiv,  1 1  How.  83. 

An  agreement  to  pay  for  the  privilege  of  putting  an  office,  etc., 
on  a  pier  does  not  create  the  relation  of  landlord  and  tenant. 
People  V.  Cushman,  i  Hun,  73.  The  tenant  must,  at  the  time  the 
proceedings  are  instituted,  hold  over  under  an  agreement  consti- 
tuting a  tenancy  ;  if  he  holds  over  under  a  new  agreement  with 
the  landlord,  as  a  contract  for  purchase,  he  cannot  be  dispossessed 
under  the  statute.  Burnett  v.  Scribner,  16  Barb.  621  ;  Capet 
V.  Parker,  3  Sandf.  662. 


506   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  2.     When  Tenant  may  be  Removed. 


Where  a  tenant  has  been  evicted  by  the  landlord  from  a  por- 
tion of  the  premises  of  substantial  value,  he  cannot  be  evicted 
under  summary  proceedings  for  non-payment  of  rent  so  long  as 
such  eviction  continues.  People  v.  Gedney,  lO  Hun,  151.  Where 
a  guardian  demises  a  house  belonging  to  his  ward,  which  is,  on 
the  ward's  coming  of  age,  conveyed  to  a  third  person,  the  grantee 
may  maintain  summary  proceedings  under  the  statute.  People 
V.  Ingcrsol,  20  How.  316.  The  landlord's  right  of  re-entry  for 
breach  of  a  condition  subsequent  cannot  be  enforced  by  summary 
proceedings  ;  he  must  resort  to  his  action  of  ejectment.  Pcnoycr 
V.  Brozvn,  2  McCarthy's  Civ.  Pro.  61.  The  relation  of  landlord 
and  tenant  exists  where  the  owner  agrees  that  a  mortgagee  shall 
occupy  the  premises  till  the  mortgage  is  satisfied  ;  on  payment 
after  a  year,  the  mortgagor  may  have  summary  proceedings. 
Hunt  v.  Cojnstock,  15  Wend.  665.  And  where  one  goes  in  pos- 
session under  an  agreement  to  accept  a  lease  for  a  specified  time 
and  refuses  afterward  to  do  so,  the  relation  exists  and  the  party 
in  possession  is  a  tenant  at  sufferance.  Anderson  v.  Prindle,  23 
Wend.  616.  The  proceeding  cannot  be  had  where  a  term  expires 
by  forfeiture.  Oakley  v.  Schoonmaker,  15  Wend.  226;  Beach  v. 
Nixon,  9  N.  Y.  35.  It  was  formerly  held  that  the  relation  of 
landlord  and  tenant  did  not  exist  under  an  agreement  to  work  a 
farm  on  shares.  Oakley  v.  Schoonmaker,  15  Wend.  226  ;  Putnam 
V.  Wise,  I  Hill,  234;  Wright  \.  MosJier,  16  How.  454  ;  Russell  v. 
Russell,  32  id.  400  ;  see  sub.  3,  §  2232.  It  docs  not  exist  under 
an  agreement  for  rooms  and  board  although  the  agreements  are 
for  separate  sums  named.  Wilson  w.  Martin,  i  Denio,  602.  Nor 
where  a  purchaser  of  real  estate  under  a  contract  fails  to  pay  ac- 
cording to  its  terms.  Williams  v.  Bigeloiv,  1 1  How.  84  ;  Burnett 
v.  Scribner,  16  Barb.  622.  Nor  where  a  tenant  for  the  life  of 
another  holds  over  after  the  determination  of  the  life  estate. 
Livingston  v.  Tanner,  4  Kern.  64.  If  a  tenant  is  holding  under  a 
new  agreement,  he  cannot  be  proceeded  against  for  default  in 
payment  of  rent,  under  a  previous  agreement ;  nor  because  he 
has  failed  to  comply  with  any  of  the  terms  of  the  former  agree- 
ment. Burnett  V.  Scribner,  16  Barb.  621;  People  v.  Swayze,  15 
Abb.  432.  A  tenancy  from  year  to  year  is  a  tenancy  for  one  or 
more  years ;  such  a  tenant  may  be  proceeded  against  at  the  ex- 
piration of  any  year  of  his  tenancy  without  notice  to  quit.  Park 
V.  Castle,  19  How.  30;  Smith  v.  Littlefield,^\  N.  Y.  539.     Where 


PROCEEDINGS   TO   RECOVER   THE    POSSESSION   OF   LAND.    507 

Art.  2.     When  Tenant  may  be  Removed. 

the  agreement  is  that  the  lease  may  be  terminated  by  sixty 
days'  notice,  and  the  tenant  refuses  to  quit  after  such  notice  and 
expiration  of  the  time  Hmited,  he  may  be  similarly  proceeded 
against.  Miller  v.  Levi,  44  N.  Y.  489.  A  tenant  cannot  be  re- 
moved where  the  landlord  has  done  some  act  which  amounts  to 
an  acknowledgment  of  his  right  to  retain  possession.  Wilder  v. 
Embank,  21  Wend.  587  ;  Prindle  v.  Anderson,  19  id.  391.  Sum- 
mary proceedings  will  lie  to  remove  the  tenant  of  a  furnished 
house  where  it  is  demised  at  a  gross  rent.  Armstrong  v.  Cum- 
mijigs,  20  Hun,  313  ;  Singley  v.  Jones,  i  City  Court,  127.  In 
such  a  case  the  furniture  is  but  an  incident  and  the  rent  issues 
out  of  the  land  only.  S.  C.  58  How.  33.  A  person  in  posses- 
sion may  show  that  he  was  formerly  the  owner  and  transferred 
the  premises  to  the  person  claiming  to  be  the  owner,  and  took 
back  a  lease  under  a  usurious  agreement,  which  was  void.  The 
rule  that  a  tenant  cannot  dispute  his  landlord's  title  does  not 
apply,  as  the  agreement  is  void.  People  ex  rel.  Ainslee  v.  Howlett, 
yG  N.  Y.  574.  Where  tenant  occupies  after  termination  of  lease 
with  consent  of  landlord,  it  is  presumed  the  tenancy  continues 
on  same  terms  as  before,  and  a  notice  to  quit  is  necessary  to 
terminate  the  tenancy,  but  the  tenant  can  be  dispossessed  for 
non-payment  of  rent.  Peoples.  Paulding,  22  Hun,  91.  Where  a 
tenant  was  allowed  to  occupy  premises  without  being  limited  to 
any  term  and  without  any  fixed  rent  being  reserved,  but  only 
such  rent  as  the  occupation  was  worth,  it  was  held  to  be  a  ten- 
ancy at  will  and  within  the  statute.  Sarsfieldv.  Healy,  50  Barb. 
245.  Where  there  is  a  tenancy  from  year  to  year,  the  tenant 
may  be  evicted  after  one  month's  notice  to  quit,  terminating  with 
the  year.  Proiity  v.  Pronty,  5  How.  81.  The  proceeding  cannot 
be  had  for  non-payment  of  rent,  where  the  landlord  receives 
rent  due  at  subsequent  quarter.  Anderson  v.  Prindle,  23  W^end. 
616. 

Where  the  lease  provides  that  on  breach  of  a  condition  at  the 
option  of  the  landlord,  the  tenancy  shall  cease  without  notice, 
default  in  payment  of  rent  does  not  constitute  such  a  breach  as 
to  authorize  proceedings  without  notice.  Beach  v.  Nixon,  9  N. 
Y.  35.  The  eviction  of  a  tenant  by  these  proceedings  for  non- 
payment of  rent  does  not  operate  to  discharge  him  from  the 
payment  of  accrued  rent.  An  action  for  breaches  of  covenant 
already  incurred   is  maintainable.     Johnson  v.    Oppenheim,  55  N. 


50S    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  2.     When  Tenant  may  be  Removed. 


Y.  280.  If  a  tenant  knowingly  sub-let  a  portion  of  the  demised 
premises  for  an  illegal  purpose,  as  for  a  policy  shop,  the  landlord 
may  annul  the  lease  and  recover  possession  by  summary  proceed- 
ings in  case  the  violation  of  law  continues  at  the  time  of  the 
institution  of  the  proceeding.  Shazv  v.  McCarty,  59  How.  487  ; 
People  V.  McCarty,  62  id.  152;  Shaiv  v.  McCarty,  63  id,  286; 
Jones  v.  Demady,  2  McCarty's  Civ.  Pro.  246.  The  landlord  of  a 
licensed  innkeeper  cannot  maintain  summary  procedings  to  en- 
force a  forfeiture,  on  the  ground  that  the  tenant  has  been  guilty 
of  selling  liquor  on  Sunday.  The  remedy  is  by  ejectment.  So 
held  in  Baltniann  v.  Kindslon,  2  McCarty's  Civ.  Pro.  47.  Where 
a  demand  of  the  rent  has  been  personally  made,  no  notice  in 
writing  is  necessary.  Rogers  w.  Lyuds,  14  Wend.  172;  People  v. 
Gross,  50  Barb.  231.  But  the  demand,  if  made,  must  be  made  as 
required  at  common  law.  The  landlord  must  demand  the  precise 
amount  due  on  the  day  when  due  and  before  sunset,  and  on  the 
land,  and  even  though  no  person  is  found  to  pay  it  to.  Jackson 
V,  Hanson,  17  Johns.  66;  Walcott  v.  ScJicnck,  16  How.  449.  But 
a  demand  of  one  of  two  joint  tenants  or  by  one  of  two  owners  is 
sufficient.  Gcisler  v.  Acosta,  9  N.  Y.  227  ;  Griffin  v.  Clark,  ^^'i^ 
Barb.  46. 

Where  the  tenant  has  made  a  general  assignment,  a  demand  of 
the  lessee  is  sufficient.  BokecM.  Hamersley,  16  How.  461.  When 
it  was  agreed  in  a  lease,  that  if  intoxicating  liquors  were  sold  on 
the  premises,  double  rent  should  be  paid,  and  the  lessor  might 
dispossess  the  lessees  for  non-payment  thereof,  it  was  held  that 
if  the  lessees  refused  to  pay  such  double  rent,  they  might  be 
dispossessed  by  summary  proceedings.  People  v.  Bennett,  14 
Hun,  58.  Summary  proceedings  may  be  had  against  corporations 
as  well  as  individuals.  Broivn  v.  Mayor  of  New  York,  66  N.  Y. 
385.  Where  a  tenant  for  one  or  more  years  holds  over  after  the 
cx[)iration  of  his  term,  the  landlord  has  the  option  to  treat  him 
as  a  trespasser,  or  as  a  tenant  for  another  year.  It  is  not  in  the 
power  of  the  tenant  to  refuse  to  be  treated  as  such  under  such 
circumstances.  ScJiuylcr  v.  SmitJi,  51  N.  Y.  309.  A  right  of 
dower  gives  a  widow  no  title  under  which  she  can  dispossess  a 
tenant.  Weisinback  v.  Pohalski,  Abbott's  Annual,  1884,  p.  303. 
But  when  a  tenant  dies  leaving  a  widow,  she  becomes  by  opera- 
tion of  law  the  assignee  of  her  husband's  term.  If  she  remains 
in  possession,  summary  proceedings  may  be  had.     Michenfelder 


TROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    509 

Art.   2.     When  Tenant  may  be  Removed. 

V.  GnntJier,  66  How.  464.  Where  a  landlord  has  a  tenant  in  pos- 
session and  lets  to  another,  the  tenancy  of  the  latter  to  begin  on 
the  day  on  which  that  of  the  former  ends,  if  the  tenant  in  posses- 
sion wrongfully  holds  over,  the  new  tenant  may  institute  pro- 
ceedings to  remove  him.  Becar  v.  Flues,  64  N.  Y.  518.  And  it 
was  held  in  Inibert  v.  Hallock,  23  How.  456,  that  the  landlord 
could  also  maintain  the  proceeding.  Where  a  tenant  dies  before 
the  expiration  of  his  term,  administration  may  be  necessary 
before  proceedings  can  be  had,  but  where  the  term  has  expired 
before  the  death  of  the  tenant,  the  person  in  possession  may  be 
proceeded  against.  Hozvard  v.  Ellis,  4  Sandf.  369.  The  remedy 
does  not  apply  to  the  case  of  a  tenant  for  the  life  of  another, 
who  conti'/ues  in  possession  after  the  determination  of  his  estate. 
Livingst( /I  \.  Tanner,  14  N.  Y.  64;  Torrey  \.  Torrey,  id.  430; 
Buck  V.  Sinninger,  3  Barb.  391.  Judge  McAdam,  in  his  work  on 
Landlord  and  Tenant,  at  page  622,  cites  the  case  of  Ottengcr  v. 
Prince,  decided  by  him  in  Marine  Court,  holding  that  a  grantor 
could,  by  deed  and  assignment,  properly  executed,  confer  upon  his 
grantee  all  his  rights  and  remedies  ;  and  that  where  the  two  were 
transferred  to  the  same  person,  he  was  by  force  of  I  Edmonds' 
Revised  Statutes,  page  698,  §  23,  put  in  the  place  of  the  grantor  ; 
that  the  grantee  could,  under  such  circumstances,  recover  all  in 
a  single  action,  and  there  was  no  good  reason  why  he  should 
splits  the  demand  to  maintain  summary  proceedings.  Judgment 
was  rendered  for  the  landlord.  To  authorize  the  proceedings, 
the  conventional  relation  must  exist.  Livingston  v.  Tanner,  14 
N.  Y.  64;  People  v.  Simpson,  28  id.  55  ;  Putnam  v.  Wise,  i  Hill, 
234;  Caswell  V.  Districh,  15  Wend.  379.  The  holding  over  con- 
templated by  statute  is  that  in  which  the  term  has  expired  by 
lapse  of  time,  not  by  breach  of  conditions.  Beach  v.  Nixon,  g  N. 
Y.  35.  But  this  is  to  be  distinguished  from  a  provision  which  is 
only  a  limita.tion  and  not  a  condition.  Miller  v.  Levi,  44  N.  Y. 
489.  As  to  when  a  lease  for  a  year  or  for  years  expires,  see 
Wilcox  v.  Woods,  9  Wend.  346  ;  People  v.  Robertson,  39  Barb.  9  ; 
Chretien  v.  Doney,  i  N.  Y.  419  ;  House  v.  Burr,  24  Barb.  525. 
Where  a  sale  has  been  consummated  by  a  deed,  the  relation  of 
landlord  exists  on  the  part  of  the  purchaser  toward  tenants  of 
the  vendor.  Bostwick  v.  Frankfield^  74  N.  Y.  207.  Not  as  between 
master  and  servant,  where  servant  is  furnished  a  house  without 
rent  as  part  of  his  compensation.     People  v.  Annis,Af'^  Barb.  304  ; 


5IO   PROCEEDINGS   TO    RECOVER   THE    POSSESSION    OF   LAND. 


Art.   2.     When  Tenant  may  be  Removed. 


Kerrains  v.  People,  60  N.  Y.  221  ;  Hayivard  v.  Miller,  3  Hill,  90; 
Miller  v.  Sisson,  53  Barb.  258.     Nor  between  tenant  in  possession 
and  the  assignor  of  his  lessee.     People  v.  Simpson,  28  N.  Y.  55. 
Payments  by  a  tenant   in  possession  on  account  of  rent  to   a 
purchaser  at  a  tax  sale   at  the  latter's   solicitation,  held,  not  an 
attornment   of  the  tenant  which  would   create  the   conventional 
relation  of   landlord  and  tenant,  and   authorize    the   institution 
of  summary  proceedings.     Sperling  v.  Isaacs,  22  Week.  Dig.  174. 
Where  a  lease    is  terminated  by  reason  of  a  conditional  limita- 
tion contained   therein  summary  proceedings  on  the  ground  of 
non-payment  of  rent  will  not  lie,  but  the   remedy  is  by  proceed- 
ings against  tenant  for  holding  over.     Estelle  v.  Dinsbeer,  9  Misc. 
487,  61  St.  Rep.  97,  30  Supp.  243.     When  an  oral  agreement  was 
made   by  the   owner  of  real  estate  to  devise  land   to  persons  if 
they  would  live  with  him,  it  was  held  not  to  be  an  agreement  for 
leasing   premises,    reversing    summary    proceedings    to   recover 
possession.     Matter  of  Matthezvs,  ^(^   W\x\\,  lA^.     Summary  pro- 
ceedings  cannot   be  maintained    upon  a   condition   in   the  lease 
against  sub-letting,  which  provides  that  the  violation  of  the  pro- 
visions terminates  the  lease.     Kramer  v.  Amber g,  16  Civ.   Pro. 
445,  4  Supp.  613,  25  St.  Rep.  60.     Any  one  of  several  tenants  in 
common  or  co-lessors  may  authorize  their  agent  to  demand  pay- 
ment of  the  rent  and  to  institute  summary  proceedings  for  non- 
payment.     Wyckoffv.  Frommer,  12  Misc.  149,  33  Supp.  11,  66  St. 
Rep.  511.     Where  the  property  is  held  by  husband  and  wife  by 
virtue  of  a  joint  conveyance  the  husband  may  maintain  summary 
proceedings  in  relation  thereto.     Peer  v.  O'Leary,  8  Misc.  350,  59 
St.  Rep.  594,  28  Supp.  687.     As  to  when  conventional  relation 
of  landlord   and  tenant   exists  between   landlord  and  lessee,  see 
Stover  V.   Chasse,  6  Misc.  394,   5^   St.    Rep.   333,  26  Supp.   740. 
The  right  of  the  landlord  to  maintain  summary  proceedings  after 
the  expiration  of  the  lease  is  not  impaired  by  the  fact  that  he  has 
given  a  lease  to  a  third   party  to  commence  at  the   expiration  of 
the  former  lease.     Goelet  v.  Roe,  14  Misc.  28,  35  Supp.  145,  69  St. 
Rep.  372,  25  Civ.   Pro.  86.     It   seems  that   where  a  lessor  has 
leased  part  of  the  premises  to  one  person,  and   subsequently  the 
whole  of  the  premises  to  another,  the  subsequent  lease  operates 
as  an  assignment  of  the  rent  due  from  the   former  and   gives  the 
subsequent  tenant   a  right  to  maintain   summary  proceedings  in 
relation   thereto.     Riisso  v.  Yuzolino,   19  Misc.  28,  42   Supp.  482, 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    5 II 

Art.  3.     When  Person  in  Possession  of  Real  Property  may  be  Removed. 

'j^  St.  Rep.  482.  A  guardian  in  socage  ma)^  lease  infant's  land 
in  his  own  name  and  may  maintain  summary  proceedings  as 
guardian.  Gallagher  v.  David  Stevenson  Brezv.  Co.,  13  Misc.  40, 
68  St.  Rep.  165,  34  Supp.  94,  25  Civ.  Pro.  106.  No  matter  how 
small  the  amount  of  rent  that  may  be  due  under  the  lease,  the 
landlord  is  entitled  to  possession.  Pearson  v.  Germond,  83  Hun, 
88,  63  St.  Rep.  842,  31  Supp.  358.  A  wife  having  an  estate  for 
life,  if  she  remains  a  widow,  upon  condition  that  she  maintain 
their  children,  was  held  to  be  the  owner,  so  that  upon  foreclosure 
her  estate  was  transferred  to  the  purchaser  on  the  sale,  who  be- 
came entitled  to  maintain  summary  proceedings.  Lang  v.  Ever- 
ling,  3  Misc.  530,  52  St.  Rep.  489,  23  Supp.  329.  A  landlord  who 
has  conveyed  all  his  interest  in  the  property  cannot  maintain 
summary  proceedings,  Boyd  v.  Sanietz,  17  Misc.  728,40  Supp. 
1070.  Nor  can  summary  proceedings  be  maintained  by  a  partner 
who  has  leased  property  to  the  partnership,  the  rent  to  be  paid 
by  the  firm,  nor  can  his  assignee  maintain  summary  proceedings. 
Bailey  v.  Crowell,  13  Misc.  63,  34  Supp.  53,  68  St.  Rep.  9.  To 
maintain  summary  proceedings  the  party  must  hold  the  entire 
estate  of  the  landlord  in  the  term  demised  to  the  tenant  against 
whom  the  proceedings  are  taken  so  as  to  constitute  him  assignee 
of  the  landlord.  Kelly  v.  Smith,  41  St.  Rep.  620,  16  Supp.  521. 
The  provisions  of  a  lease  executed  after  1885  authorizing  the 
landlord  to  take  summary  proceedings  in  case  of  default  in  the 
payment  of  the  rent  is  bar  to  proceedings  for  non-payment  of 
taxes.  Bixby  v.  Casina  Co.,  14  Misc.  346,  35  Supp.  ^"JJ,  70  St. 
Rep.  471.  A  final  order  in  summary  proceedings  dismissing  the 
petition  upon  failure  of  petitioner  to  prove  oral  lease  relied  upon 
as  the  basis  of  the  proceedings  is  a  bar  to  subsequent  proceed- 
ings under  the  statute  making  a  tenancy  for  which  there  is  no 
specified  duration  to  terminate  on  the  first  day  of  May.  Lazarus 
V.  Ludwig,  18  Misc.  474,  41  Supp.  999,  75  St.  Rep.  1369. 

ARTICLE  III. 

When  Person  Continuing  in  Possession  of  Real   Prop- 
erty MAY  be  Removed.    §§  2232,  2233, 

§  2232.  Person  holding  over  land  sold,  etc.,  may  be  removed. 

In  either  of  the  following  cases,  a  person,  who  holds  over  and  continues  in  pos- 
session of  real  property,  after  notice  to  quit  the  same  has  been  given,  as  prescribed  in 


512    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 

Art.  3.     "When  Person  in  Possession  of  Real  Property  may  be  Removed. 

§  2236  of  this  act,  and  his  assigns,  tenants,  or  legal   representatives,  may  be  removed 
therefrom,  as  prescribed  in  this  title  : 

1.  Where  the  property  has  been  sold  by  virtue  of  an  execution  against  him,  or  a 
person  under  whom  he  claims,  and  a  title  under  the  sale  has  been  perfected. 

2.  Where  the  property  has  been  duly  sold,  upon  the  foreclosure,  by  proceedings 
taken  as  prescribed  in  title  ninth  of  this  chapter,  of  a  mortgage,  executed  by  him,  or  a 
person  under  whom  he  claims,  and  the  title  under  the  foreclosure  has  been  duly  per- 
fected. 

3.  Where  he  occupies  or  holds  the  property,  under  an  agreement  with  the  owner  to 
occupy  and  cultivate  it  upon  shares,  or  for  a  share  of  the  crops,  and  the  time,  fixed  in 
the  agreement  for  his  occupancy,  has  expired. 

4.  [Am'd,  1894.]  Where  he,  or  the  person  to  whom  he  has  succeeded,  has 
intruded  into,  or  squatted  upon,  any  real  property,  without  the  permission 
of  the  person  entitled  to  the  possession  thereof,  and  the  occupancy,  thus  com- 
menced, has  continued  without  permission  from  the  latter ;  or,  after  a  permission 
given  by  him  has  been  revoked,  and  notice  of  the  revocation  given  to  the  person  or 
persons  to  be  removed. 

Sub.  4  of  §  28,  R.  S.,  am'd ;  L.  1874,  ch.  208,  and  §  31,  R.  S. ;  L.  1S94,  ch.  232. 

§  2233.  Id. ;  in  case  of  forcible  entry  or  detainer. 

An  entry  shall  not  be  made  into  real  property,  but  in  a  case  where  entry  is  given  by 
law ;  and,  in  such  a  case,  only  in  a  peaceable  manner,  not  with  strong  hand,  nor 
with  multitude  of  people.  A  person  who  makes  a  forcible  entry  forbidden  by  this 
section,  or  who,  having  peaceably  entered  upon  real  property,  holds  the  possession 
thereof  by  force,  and  his  assigns,  under-tenants,  and  legal  representatives,  may  be  re- 
moved therefrom,  as  prescribed  in  this  title. 

2  R.  S.  507,  §§  I  and  2  (2  Edm.  523). 

This  remedy  may  be  had  not  only  by  the  purchaser  at  the 
sale  under  execution,  but  by  his  grantee,  and  the  regularity  and 
validity  of  the  proceeding  cannot  be  inquired  into,  nor  whether 
the  purchaser  was  a  bona  fide  purchaser.  It  is  sufficient  if  the 
judgment  and  execution  are  regular  on  their  face.  Brown  v. 
Betts,  13  Wend.  29.  And  the  remedy  may  be  had  against  the 
person  in  possession  at  the  time  of  the  sale  under  title  sub- 
sequent to  the  judgment,  but  the  papers  must  show  that  the 
third  person  so  claims  title  under  the  execution  debtor.  Hallcn- 
hcck  V.  Garner,  20  Wend.  22;  Birdsall  v.  Phillips,  17  id.  464. 
]5ut  the  execution  debtor  may  deny  the  facts  upon  which  the 
summons  issued  against  him,  and  is  entitled  to  a  jury  trial. 
Sprakcr  v.  Cook,  16  N.  Y.  567.  It  is  no  defence,  however,  that 
the  person  proceeded  against  is  a  tenant  in  common  of  the  prem- 
ises sold  ;  the  purcliaser  acquired  all  his  title,  and  has  a  right 
to  be  sub.stituted  to  his  possession  of  the  premises.  Brozvn  v. 
Betts,  13  Wend.  29. 

On  summary  proceedings  by  a  purchaser  of  an  estate  for 
years,  at  an  execution  sale,  any  person  may  be   removed  who  is 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF    LAND.    513 

Art.  3.     When  Person  in  Possession  of  Real  Property  may  be  Removed. 

in  posses.sion  under  the  title  acquired  by  the  purchaser  ;  the  pro- 
visions apply  to  the  judgment  debtor,  and  all  holding  under  him 
under  pretence  of  title  acquired  from  him.  People  ex  rel.  Higgins 
V.  McAdam,  84  N.  Y.  287.  The  provisions  of  Code,  §§  2951  and 
2952,  relating  to  removal  of  causes  from  justices'  court,  where  an 
answer  is  interposed  which  raises  a  question  of  title  to  real  prop- 
erty, do  not  apply  to  summary  proceedings  for  removal  of 
squatter  under  §2232,  subdivision  4.  Matter  of  White,  12  Abb. 
N.  C.  348.  To  maintain  summary  proceedings  after  the  sale  of  a 
leasehold  on  execution,  the  sale  must  be  advertised  and  con- 
ducted as  the  law  requires  for  a  sale  of  real  property.  Mit- 
nacJit  V.  Cocks,  65  How.  84.  But  no  irregularity  in  the  judg- 
ment on  which  execution  was  issued  can  be  inquired  into.  Jack 
V.  Casliin,  I  City  Ct.  72  ;  Getting  v.  Mohr,  34  Hun,  340.  Where 
a  party  is  in  possession  of  land  by  her  tenant,  and  a  person  set- 
ting up  a  claim  to  the  premises  through  a  tax  deed,  afterward 
adjudged  invalid,  induces  the  tenant  to  attorn  to  him,  and  enters 
into  possession  of  the  premises,  he  is  an  intruder  within  the 
meaning  of  §  2232  of  the  Code,  and  may  be  ejected  by  summary 
proceedings.  O' Donnell  v.  Mclntyc,  2  State  Rep.  343  ;  S.  C.  i 
id.  68,  41  Hun,  loo,  9  Civ.  Pro.  370,  reversing  16  Abb.  N. 
C.  84. 

Section  2233  gives  tlie  remedy  b}^  summary  proceedings  in  those 
cases  where,  before  the  Code,  the  remedy  under  proceedings  for 
forcible  entry  and  detainer  were  available.  This  remedy  is  much 
speedier  and  more  simple  than  the  proceeding  under  the  Re- 
vised Statutes,  now  repealed.  In  Wood  v.  Phillips,  43  N.  Y. 
152,  a  forcible  entry  and  detainer  was  defined,  as  also  in  Porterv. 
People,  7  How.  441  ;  People  v.  Field,  52  Barb.  198  ;  People  v.  Smith, 
24  id.  16.  In  an  action  for  forcible  entry  and  detainer,  it  appear- 
ing that  in  the  alleged  act  of  entry  no  threats  of  personal  violence 
were  used,  no  unusual  weapons  displayed,  nor  any  unusual  num- 
ber of  persons  nor  riotous  assemblage,  it  was  held  that  the  cir- 
cumstances of  violence  and  terror  necessary  to  constitute  for- 
cible entry  were  lacking.  Dudley  v.  Chenfrau,  2  Edw.  Sel.  Cas. 
128.  An  injunction  to  stay  summary  proceedings  should  not  be 
granted  under  the  Code  of  Civil  Procedure  on  appeal  from  a 
judgment  in  a  proceeding  for  forcible  entry  and  detainer,  un- 
less in  case  of  allegation  of  fraud  or  collusion  in  the  proceedings, 
or  where  the  magistrate  has  no  jurisdiction.  Forcible  entry  by 
33 


514    PROCEEDINGS   TO    RECOVER   THE    POSSESSION    OF   LAND. 
Art.  3.     When  Person  in  Possession  of  Real  Property  may  be  Removed. 


servants  of  a  railroad  company,  followed  by  possession  by  the 
company,  held  to  be  presumably  the  act  of  the  corporation  or 
ratified  by  it.  People  v.  N.  Y.  Central  R.  R.  Co.,  51  N.  Y.  623. 
An  owner  of  land  wrongfully  held  out  of  possession  may  watch 
his  opportunity,  and  if  he  can  regain  possession  peaceably,  may 
maintain  it  and  resist  attempts  by  the  former  occupant  to  retake 
possession  without  being  liable  under  the  statute  for  forcible 
entry  and  detainer.  Bliss  v.  Johnson,  73  N.  Y.  529.  Where  a 
person  is  in  possession  of  real  estate,  even  though  he  be  a  mere 
tenant  by  sufferance,  or  has  not  paid  his  rent,  or  holds  over,  the 
owner  can  only  regain  possession  by  proceeding  by  process  of 
law.  Public  policy  forbids  a  resort  to  violence.  Health  Depart- 
ment of  Nciv  York  V.  Poliee  Department  of  New  York,  41  N.  Y. 
Super.  323,  afifirming  51  How.  157. 

In  proceedings  under  the  statute,  before  the  Code,  for  forcible 
entry  and  detainer,  an  affidavit  verified  in  the  manner  prescribed 
for  pleadings  by  the  Code  was  insuf^cient  ;  such  verification  is 
on  information  and  belief,  and  did  not  satisfy  the  statute.  The 
proceedings  are  summary  and  liable  to  technical  objections. 
People  V.  Whitney,  i  T.  &  C.  533.  A  mere  entry  under  claim  of 
title  without  force  which  could  give  the  prior  occupant  ground  of 
apprehension  or  danger  from  standing  in  defence  of  possession,  is 
not  a  forcible  entry  or  detainer,  within  the  meaning  of  the  statute. 
People  V.  Smith,  24  Barb.  16;  Willardv.  Warren,  17  Wend.  257. 
In  forcible  entry  and  detainer,  the  main  question  is,  whether  the 
party  entered  by  force  upon  one  previously  having  a  peaceable 
possession  under  claim  of  right,  and  whether  the  person  whose 
possession  was  invaded  has  been  held  out  by  force.  This  does 
not  involve  the  determination  of  conflicting  titles  to  real  estate. 
Kelly  V.  Sheehy,  60  How.  439.  It  was  held  that  a  person  enter- 
ing under  a  tax  deed  and  remaining  in  possession  after  it  has 
been  adjudged  void  for  invalidity  in  the  assessment  of  the  tax  is 
not  a  "  squatter"  or  "intruder"  within  the  meaning  of  this  sec- 
tion of  the  statute,  which  authorizes  summary  proceedings  to 
remove,  for  he  did  not  enter  without  title  or  legal  authority. 
Title  is  not  an  issue  in  such  a  proceeding.  It  is  enough  for 
plaintiff  to  show  actual  possession  at  the  time  when  defendant 
attempted  by  force  to  eject  plaintiff,  and  that  defendant  did,  by 
force  or  fear  inspired  by  force,  drive  or  keep  plaintiff  from  the 
premises.     G Donne II  v.  Mclntyre,  16  Abb.  N.  C.  84,  reversed,  2 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    515 


Art.  3.     When  Person  in  Possession  of  Real  Property  may  be  Removed. 


St.  Rep.  343,  41  Hun.  100.  And  in  Willard  v.  Warren,  17 
Wend.  257,  it  is  said,  that  to  constitute  a  forcible  entry  and  de- 
tainer violence  is  necessary,  or  some  acts  tending  strongly  to- 
ward violence  in  the  nature  of  gestures,  menaces,  threats,  or  such 
demonstrations  as  give  reasonable  ground  to  apprehend  injury  in 
defending  the  premises.  The  breaking  of  the  lock  on  an  out- 
building of  plaintiff  does  not  constitute  a  forcible  entry  ;  it  must 
be  more  than  a  trespass,  and  to  constitute  a  forcible  entry  the 
same  circumstances  of  violence  are  requisite,  and  the  keeping  in 
the  house,  of  which  possession  has  been  forcibly  obtained,  a 
large  number  of  people  with  weapons,  or  threats  of  injury  to  the 
person  formerly  in  possession,  in  case  of  his  return,  is  a  forcible 
detainer.  People  v.  Rickert,  8  Cow.  226.  The  question  of  title 
was  not  involved  in  the  proceeding  under  the  statute,  as  now 
only  the  right  to  possession  is  in  question.  Carter  v.  Newbold, 
7  How.  166.  In  case  of  proceedings  under  the  statute  for  entry 
into  a  church,  it  was  held  the  proceedings  should  be  taken  in  the 
name  of  the  corporation  and  not  of  the  individual  trustees. 
People  V.  Fulton,  11  N.  Y.  94.  Any  person  lawfully  in  possession 
and  excluded  therefrom  has  the  benefit  of  the  statute.  People  v. 
Carter,  29  Barb.  208;  People  v.  Reed,  ii  Wend.  157;  People  v. 
Van  Nostrand,  9  id.  50.  Where  one  tenant  in  common  had 
forcibly  intruded  upon  the  possession  of  his  co-tenants  and  been 
forcibly  evicted,  he  could  not  have  the  proceeding.  King  v. 
Phillips,  I  Lans.  421.  The  complainant  ought  in  his  petition  to 
disclose  the  nature  of  his  right  to  the  possession,  and  how,  and 
from  whom,  it  was  acquired,  so  that  it  may  appear  that  he  has 
the  legal  right,  and  an  allegation  as  to  his  rights,  without  facts 
to  sustain  it,  is  a  legal  conclusion.  It  will  not,  however,  deprive 
the  officer  of  jurisdiction.  People  v.  Field,  52  Barb.  198.  It  is 
not  necessary  that  the  complainant  in  forcible  entry  and  detainer 
should  prove  himself  seized  of  a  freehold  or  possessed  of  a  term 
of  years ;  possession  is  enough.  People  v.  Van  Nostrand,  9 
Wend.  50;  People  v.  Reed,  11  id.  157;  People  v.  Carter,  29  Barb. 
208.  The  proceeding  must  be  instituted  by  the  person  forcibly 
put  out,  or  forcibly  held  out  of  possession,  or  the  guardian  of 
any  such  person  being  a  minor,  and  must  be  prosecuted  in  the 
name  of  the  party  whose  legal  right  of  possession  has  been  in- 
vaded. People  v.  Fulton,  11  N.  Y.  94.  A  mere  intruder  cannot 
maintain  the  proceeding,  but  every  person  lawfully  in  possession, 


5l6   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 
Art.   3.     When  Person  in  Possession  of  Real  Property  may  be  Removed. 


and  having  some  right  to  the  possession,  and  forcibly  exckided 
therefrom,  is  entitled  to  the  benefit  of  the  statute.  People  v. 
Reed,  II  Wend.  157.  The  main  question  to  be  determined  in 
questions  of  this  character  is,  whether  the  party  charged,  entered 
by  force  upon  one  having  previously  a  peaceable  possession 
under  claim  of  right,  and  whether  the  person  whose  possession 
has  been  invaded  has  been  held  out  by  force  ;  for  no  one  has  a 
right  to  assert  his  own  title  with  force  and  violence  against 
another  in  peaceable  possession,  and  under  color  of  title.  Kelly 
V.  Sheehy,  60  How.  439. 

Summary  proceedings  cannot  be  maintained  for  land  sold 
under  foreclosure  of  mortgage,  which  contained  no  power  of 
sale,  as  such  mortgage  became  foreclosed  on  the  happening  of 
the  condition  under  operation  of  law,  and  not  by  virtue  of 
subdivision  2  of  §  2232.  As  the  statutory  requirement  on  fore- 
closure by  advertisement  must  be  strictly  pursued,  a  purchaser 
on  a  sale  under  such  foreclosure  of  a  mortgage  given  to  secure 
notes,  one  of  which  has  been  transferred  to  a  bank  to  which  an 
assignment,  unrecorded,  of  the  mortgage,  absolute  in  form,  but 
shown  by  oral  evidence  to  be  as  collateral  only,  has  been  made, 
cannot  maintain  summary  proceedings  to  obtain  possession  of 
the  mortgaged  premises  where  the  foreclosure  proceedings  were 
instituted  and  carried  on  in  the  name  of  the  mortgagee  only, 
without  mentioning  the  assignment.      Weir  v.  Birdsall,  27  App. 

Div.  405. 

Actual  occupancy  at  time  of  entry  is  not  necessary  in  order  to 
entitle  the  person  injured  to  proceed  under  the  statute.  Naked 
prior  possession  is  enough  prima  facie  as  against  a  stranger 
who  shows  no  right  to  possession.  People  v.  Field,  52  Barb.  198. 
But  proof  that  at  the  time  of  the  alleged  forcible  entry  and 
detainer,  and  for  a  long  time  previous,  the  defendants  had  been 
in  peaceable  possession  of  the  premises  in  question,  and  th.at  the 
defendants  had  never  been  in  possession,  was  held  to  be  rele- 
vant to  the  questions  before  the  jury  as  going  to  show  that  the 
defendants  had  not  made  a  forcible  entry  within  the  intent  of 
the  statute.  People  v.  Wilson,  13  How.  446.  Valid  ri-ht  of 
possession  by  occupant  need  not  be  shown,  it  is  enough  that  he 
be  in  peaceable  and  quiet  occupancy  at  least,  unless  a  mere 
trespasser,  as  against  complainant.  Where  the  defendant  removed 
buildings  from  the  premises  and  intruded  on  the  possession  with 


PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND.    517 

Art.  4.     To  What  Officer  or  Court  Application  may  be  Made. 

a  number  of  men,  it  was  enough   to  send  the  case  to  the  jury. 
People  V.  Field,  52  Barb.  198. 

Since,  in  proceedings  to  remove  a  person  under  the  statute,  the 
petition  must  allege  either  an  actual  or  constructive  possession, 
a  petition  alleging  a  peaceable  entry  by  the  petitioner,  and  a 
forcible  ejection  from  the  premises  by  the  defendant,  is  insuf- 
ficient. Kent  V.  St  urges,  Abbott's  Annual,  1884,  p.  303.  The 
examination  of  witnesses  must,  however,  be  confined  to  the 
appropriate  statutory  subjects  of  inquiry,  and  defendant  cannot 
show  or  avail  himself  of  any  possession  in  a  stranger.  Carter  v. 
Newbold,  7  How.  166.  Nor,  on  the  other  hand,  can  the  party 
instituting  proceedings  set  up  a  claim  of  title  in  the  State,  or  any 
one  else  in  hostility  to  that  under  which  he  holds.  People  v. 
Field,  supra.  The  questions  to  be  tried  are  possession  and 
the  forcible  character  of  obtaining  or  holding  it,  not  the  right  of 
possession.  People  v.  Porter,  7  How.  441.  It  is  not  necessary 
that  a  tenant  attorn  to  the  assignee  of  the  lease  in  order  to 
enable  the  latter  to  maintain  summary  proceedings.  Wetterer  v. 
Soubirous,  22  Misc.  739,  49  Supp.  1043,  83  St.  Rep.  1043. 

ARTICLE  IV. 

To  What  Officer  or  Court  Application  may  be 
Made.     §  2234. 

§  2234.    [Am'd,  1895.]    Application;  to  whom  made. 

Application  for  removal  of  a  person  from  real  property,  as  prescribed  in  this  title,  may 
be  made  to  the  county  judge  or  special  county  judge  of  the  county  or  a  justice  of  the 
peace  of  the  city  or  town  or  the  mayor  or  recorder  of  the  city  wherein  the  real  property, 
or  a  portion  thereof,  is  situated.  Application  may  also  be  made,  if  the  property,  or  a 
portion  thereof,  be  situated  in  the  city  of  New  York,  to  a  judge  of  the  city  court  of 
the  city  of  New  York,  or  the  district  court  of  the  district  within  which  the  property, 
or  a  portion  thereof,  is  situated,  or  if  the  judge  of  such  court  be  for  any  reason  dis- 
qualified, to  the  District  Court  of  an  adjoining  district ;  if  in  the  city  of  Brooklyn,  to  a 
police  justice  of  that  city  ;  if  in  the  city  of  Albany,  or  in  the  city  of  Troy,  to  a  justice 
of  the  justices'  court  of  that  city ;  if  in  the  city  of  Yonkers,  to  the  city  judge  of  that 
city;  if  in  the  cities  of  Syracuse,  Rochester,  or  Buffalo,  to  a  judge  of  the  municipal 
court  of  said  cities.  Where  the  property  is  situated  in  an  incorporated  village,  the 
boundaries  of  which  embrace  portions  of  two  or  more  towns,  application  may  be  made 
to  a  justice  of  the  peace  of  either  town,  who  keeps  an  office  in  the  village. 

Section  28,  R.  S.,  am'd;  L.  1849,  ch.  193  {2  Edm.  529) ;  Const,  art.  6,  §  15;  Const. 
1846,  art.  6,  §  15;  L.  1849,  ch.  306;  L.  1851,  ch.  108;  Const.  1869,  art.  6,  §  16; 
L.  1850,  ch.  205,  §  3 ;  L.  1875,  ch.  259,  §  i  ;  L.  1852,  ch.  324,  §  i  ;  L.  1857,  ch.  344, 
§  77,  sub.  2;  L.  1863,  ch.  189  (6  Edm.  86)  ;  Co.  Proc,  §  66,  am'd;  L.  1870,  ch.  741, 
§  4  (7  Edm.  774) ;  L.   1877,  ch.  187  ;  L.  1870,  ch.  386;  L.  1821,  ch.  47.  §  i  ;  L.  1834, 


5l8    PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

ch.  271,  §§  I  and  19;  L.  1872,  ch.  866,  §  i  ;  L.  1873,  ch.  61,  §  2;  L.  1878,  ch.  186,  §  7; 
L.  1876,  ch.  196,  §§  5  and  16;  L.  1849,  ch.  125,  §26;  L.  1870,  ch.  470,  §  13;  L.  1854 
ch.  96,  §  25;  L.  1857,  ch.  361,  §  6;  L.  1895,  ^h.  946. 

The  following  decisions  as  to  the  officer  before  whom  proceed- 
ings may  be  taken  were  made  under  the  Revised  Statutes : 
People  V.  Rjisse/l,  19  Abb.  36;  Marry  v.  James,  37  How.  52; 
Carlisle  v.  Me  Call,  i  Hilt.  399  ;  Gillilan  v.  Spratt,  8  Abb.  (N.  S.) 
1 3  ;  People  v.  Willis,  5  Abb.  205  ;  Mclntyre  v.  Hernajidez,  39 
How.  121.  A  comparison  of  the  statute  with  the  Code  will  at 
once  show  their  applicability  as  to  the  different  courts.  The 
following  cases  relate  to  jurisdiction  of  District  Courts  in  New 
New  York  City,  and  hold  that  the  demised  premises  must  be  within 
the  district  in  which  the  judgment  was  granted  :  People  v.  Camp- 
bell, 60  How.  102  ;  People  v.  Kelly,  20  Hun,  549.  Where  the 
affidavit  failed  to  show  jurisdiction  of  justice,  the  proceedings, 
were  held  void.  Ciiyler  v.  Crane,  25  Hun,  6y.  The  affidavit 
must  show  the  premises  are  situated  within  the  jurisdiction  of 
the  officer  before  whom  the  proceeding  is  instituted,  or  the 
jurisdiction  fails,  and  recitals  in  the  summons  will  not  cure  the 
defect.     People  v.  Broad))ian,  4  Keyes,  59. 

The  city  court  of  Albany  has  no  power  in  summary  proceed- 
ings to  pass  upon  equities  which  may  exist  between  the  parties 
to  a  conveyance  which  is  absolute  on  its  face  ;  but  is  limited  to 
the  legal  title.  Matter  of  Hattersley  v.  Cronyn,  22  Misc.  259  ; 
sub  nom.,  Hattersley  v.  Cronyn,  49  Supp.  1113,  83  St.  Rep.  11 13. 

ARTICLE  V. 

Petition   by  Person   Entitled   to   Possession.     §§  2235, 
2236,  2237.     Chapter  303,  Laws  1882,  2  R.  S.,  7th  ed.,  §  7. 

§  2235.  Petition  by  person  entitled  to  possession. 

The  appUcation  may  lie  made  by  tlie  landlord  or  lessor  of  the  demised  premises  ; 
the  purchaser  upon  the  execution  or  foreclosure  sale  ;  the  person  forcibly  put  out  or 
kept  out ;  the  person  with  whom,  as  owner,  the  agreement  was  made,  or  the  owner  of 
the  property  occupied  under  an  agreement,  to  cultivate  the  property  upon  shares,  or 
for  a  share  of  the  crops  ;  or  the  person  lawfully  entitled  to  the  possession  of  the 
property  intruded  into  or  squatted  upon,  as  the  case  requires  ;  or  by  the  legal  representa- 
tive, agent,  or  assignee  of  the  landlord,  purchaser,  or  other  person,  so  entitled  to 
apply.  The  applicant  must  present  to  the  judge  or  justice,  a  written  petition,  verified 
in  like  manner  as  a  verified  complaint  in  an  action  brought  in  the  Supreme  Court ; 
describing  the  premises  of  which  the  possession  is  claimed,  and  the  interest  therein  of 
the  petitioner,  or  the  person  whom  he  represents ;  stating  the  facts,  which,  according 
to  the  provisions  of  this  title,  authorize  the  application  by  the  petitioner,  and  the 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    519 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

removal  of  the  person  in  possession  ;  naming,  or  otherwise  intelligibly  designating 
the  person  or  persons  against  whom  the  special  proceeding  is  instituted,  and,  if  there 
are  two  or  more  such  persons,  and  some  are  under-tenants  or  assigns,  specifying  who 
are  principals  or  tenants,  and  who  are  under-tenants  or  assigns ;  and  praying  for  a 
final  order  to  remove  him  or  them  accordingly. 

Sections  2,  3,  and  29,  R.  S.,  am'd  and  consolidated.     See  i  T.  &  C.  533. 

§  2236.  Notice  to  be  given  in  certain  cases. 

Where  the  person  to  be  removed  is  a  tenant  at  will,  or  at  sufferance,  the  petition 
must  state  the  facts,  showing  that  the  tenancy  has  been  terminated,  by  giving  notice, 
as  required  by  law.  Where  the  application  is  made  in  a  case  specified  in  §  2232  of 
this  act,  the  petition  must  state  that  a  notice,  in  behalf  of  the  applicant,  requiring  all 
persons  occupying  the  property  to  quit  the  same,  by  a  day  specified,  has  been  either 
served  personally  upon  the  person  or  persons  to  be  removed,  or  affixed  conspicuously 
upon  the  property,  at  least  ten  days  before  the  day  specified  therein. 

Section  31,  R.  S.,  and  L.  1857,  ch.  396,  §§  2  and  3  (4  Edm.  617.) 

Chapter  303,  Laws  of  1882,  §  1. 

No  monthly  tenant  shall  hereafter  be  removed  from  any  lands  or  tenements  in  the 
city  of  New  York,  on  the  ground  of  holding  over  his  term  (except  when  the  same 
expires  on  the  first  day  of  May),  unless  at  least  five  days  before  the  expiration  of  the 
term,  the  landlord  or  his  agent  serves  upon  the  tenant  in  the  same  manner  in  which 
a  summons  in  summary  proceedings  is  now  allowed  to  be  served  by  law,  a  notice  in 
writing  to  the  effect  that  the  landlord  elects  to  terminate  the  tenancy,  and  that,  unless 
the  tenant  removes  from  said  premises  on  the  day  on  which  his  term  expires,  the 
landlord  will  commence  summary  proceedings  under  the  statute  to  remove  such 
tenant  therefrom. 

2  R.  S.  (7th  ed.)  1126,  §  7. 

Whenever  there  is  a  tenancy  at  will  or  by  sufferance,  created  by  the  tenant's  holding 
over  his  term  or  otherwise,  the  same  may  be  terminated  by  the  landlord  giving  one 
month's  notice  in  writing  to  tenant,  requiring  him  to  remove  therefrom. 

§  2237.  Petition  by  neighbor  of  bawdy-house,  etc. 

An  owner  or  tenant  of  real  property,  in  the  immediate  neighborhood  of  other 
demised  real  property,  which  is  used  or  occupied  as  a  bawdy-house,  or  house  of 
assignation  for  lewd  persons,  may  serve  personally  upon  the  owner  or  landlord  of  the 
premises,  so  used  or  occupied,  or  upon  his  agent,  a  written  notice,  requiring  the 
owner  or  landlord  to  make  an  application  for  the  removal  of  the  person  so  using  or 
occupying  the  same.  If  the  owner  or  landlord,  or  his  agent,  does  not  make  such 
an  application,  within  five  days  thereafter;  or  having  made  it,  does  not  in  good  faith 
diligently  prosecute  it,  the  person  giving  the  notice  may  make  such  an  application, 
stating  in  his  petition  the  fact  so  entitling  him  to  make  it.  Such  an  application  has 
the  same  effect,  except  as  otherwise  expressly  prescribed  in  this  title,  as  if  the  appli- 
cant was  the  landlord  or  lessor  of  the  premises. 

Sections  56  and  61,  R.  S. ;  L.  1S68,  ch.  764  (7  Edm.  335). 

A  petition  not  verified  is  insufficient  to  confer  jurisdiction,  and 
an  appearance  by  the  defendant  on  the  return  day  to  hold  open 
the  case,  when  he  afterward  objects  to  the  jurisdiction,  is  no 
waiver  of  his  rights.  CoatswortJi  v.  Thompson,  5  State  Rep.  809. 
In  case  the  deed  has  not  been  delivered,  a  landlord,  who  has  con- 


520   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

tracted  to  sell  premises,  may  maintain  the  proceeding.  Miller 
V.  Levi,  44  N.  Y.  489.  When  one  of  two  joint  lessors  becomes 
sole  owner  of  the  land,  and  entitled  to  the  rents  by  conveyance 
from  the  other,  he  may  demand  the  whole  rent,  and  on  refusal 
dispossess  in  his  own  name.  Griffin  v.  Clark,  33  Barb.  46.  The 
assignee  of  the  lessor  may  have  the  proceeding.  Birdsall  v. 
Phillips,  17  Wend.  464.  Assigns  refer  to  such  as  hold  the  entire 
estate  of  the  landlord  in  the  term  demised  to  the  tenant,  against 
whom  the  proceeding  is  had.  Imbert  v.  Hallock,  23  How.  456. 
Where  a  guardian  has  leased  lands  of  a  ward  and  the  ward  has 
become  of  age  and  conveyed,  his  grantor  may  maintain  summary 
proceedings.  People  v.  Ingcrsoll,  58  How.  351.  Where  a  lessor 
of  premises  in  part  owned  by  him  and  in  part  held  by  him  under 
lease,  at  his  death  devised  to  his  son  all  his  estate,  it  was  held 
there  was  sufificient  unity  of  interest  and  of  the  right  of  posses- 
sion between  such  son  and  the  executors  of  his  father's  estate,  to 
enable  them  jointly  to  institute  and  maintain  summary  proceed- 
ings against  the  tenant  for  non-payment  of  rent.  People  v. 
Dudley,  58  N.  Y.  323  ;  People  v.  Stiiyvesant,  i    Hun,  102. 

A  receiver  may  maintain  the  proceedings.  Matter  of  Renwick, 
I  Law  Bull.  19.  The  affidavit  may  be  made  by  a  sole  surviving 
trustee.      Thresher  v.  Keteltas,  2  How.  63. 

The  affidavit  must  allege  facts  and  not  the  evidence  of  facts, 
nor  should  matter  of  law  be  stated.  Hill  v.  Stocking,  6  Hill,  314. 
It  should  not  be  uncertain  or  contradictory,  but  make  out  a  plain 
case.  People  v.  Matthcivs,  43  Barb.  168,  affirmed,  38  N.  Y.  451  ; 
Wiggins  V.  Woodruff,  16  Barb.  474;  Deuel  v.  Rust,  24  id.  438; 
Hill  V.  Stocking,  6  Hill,  314;  Wallaces.  Eaton,  5  How.  99.  In 
order  to  give  the  court  jurisdiction,  it  must  show  that  the  con- 
ventional relation  of  landlord  and  tenant  exists,  created  by  agree- 
ment or  recognized  by  the  tenant,  and  it  must  also  appear  from 
the  facts  stated,  that  the  term  of  the  tenant  has  expired,  or  that, 
by  virtue  of  the  statute,  the  landlord  is  entitled  to  possession. 
People  V.  Simpson,  28  N.  Y.  55;  Russell  v.  Russell,  32  How.  400; 
Buck  V.  Binninger,  3  id.  391  ;  Deuel  v.  Rust,  24  id.  438  ;  Matter  of 
Robinson,  i  id.  213  ;  People  v.  Matthezvs,  38  N.  Y.  451.  Great 
l)articularity  is  required,  and  every  fact  necessary  to  give  the  of- 
ficer jurisdiction  must  be  distinctly  stated,  or  the  proceeding  will 
be  dismissed.  It  will  be  strictly  construed  as  a  pleading  most 
stringently  against  the  complainant,  and  its  allegations  must  not 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    52 1 

Art.  5.      Petition  by  Person  Entitled  to  Possession. 

be  contradictory,  Wiggins  \.  Woodruff,  16  Barb.  474;  Simpson 
V.  RJii)icla)iders,  20  Wend.  103  ;  Prontyw.  Prouty,  5  How.  81.  An 
affidavit,  if  made  by  an  agent  of  the  landlord,  must  affirmatively 
show  the  fact  of  such  agency,  it  is  not  enough  to  state  it  by  way 
of  recital.  People  v.  Johnson,  i  T.  &  C.  578.  It  must  show,  where 
such  notice  is  necessary,  not  only  that  a  three  days'  notice  in 
writing  was  served,  but  that  it  was  served  in  the  manner  required 
by  law.  People  v.  Keteltas,  12  Hun,  6j.  A  petition  for  removal 
for  holding  over  in  default  in  payment  of  rent,  which  simply  al- 
leges that  the  petitioner  has  caused  at  least  three  days'  notice  to 
quit  to  be  served  on  the  tenant  without  alleging  the  manner  of 
such  service,  is  insufficient,  and  where  the  tenant  appears  and  no 
proof  of  service  is  given  on  the  hearing,  the  petitioner  is  not  en- 
titled to  the  order.  Posson  v.  Dean,  8  Civ.  Pro.  177.  It  was  held, 
in  Broivn  v.  Ncxv  York,  66  N.  Y.  385,  that  the  omission  of  the 
venue  in  the  affidavit  is  a  jurisdictional  defect.  People  v.  De- 
Camp,  12  Hun,  378.  But  where  the  petition  was  verified  and  the 
signature  at  end  of  verification,  the  omission  of  signature  to  peti- 
tion was  held  not  to  be  jurisdictional.  Chadwick  v.  Spargur,  i 
Civ.  Pro.  422.  If  a  corporation  is  landlord,  the  mayor  can  make 
the  affidavit.  People  v.  A^ew  York  and  Troy  Steajuboat  Co.,  6  Alb. 
L.  J.  26.  The  affidavit  must  show  that  the  applicant  is  entitled 
to  the  possession,  and  that  the  occupant  holds  in  hostility  to  his 
title.  People  v.  Andrezvs,  52  N.  Y.  445.  The  affidavit  should 
show  the  tenant  in  possesion  of  the  premises,  and  that  he  con- 
tinues in  possession  "  without  the  permission  of  his  landlord." 
Smith  V.  Huestis,  Hill  &  Denio,  236;  Rogers  v.  Wynds,  14  Wend. 
272;  Campbell  V.  Mallory,  52  How.  183.  It  need  not  state  the 
date  or  duration  of  the  lease.  People  v.  Teed,  a^Z  Barb.  424.  But 
where  the  proceedings  are  against  different  parties,  it  should  dis- 
tinctly show  which  are  tenants  and  which  are  sub-tenants.  Wig- 
gins V.  Woodruff,  16  Barb.  474. 

Where  the  affidavit  shows  the  relation  of  landlord  and  tenant 
was  created  by  a  contract  of  hiring,  if  the  contract  is  not  fully 
stated  in  the  affidavit,  it  is  sufficient  to  show  the  agreement  was 
made  between  the  agent  of  the  landlord  and  the  agent  of  the 
tenant,  and  the  default  of  the  tenant.  Estate  of  Norseivorthy  v. 
Bryan,  33  Barb.  152.  The  affidavit  must  give  a  description  of 
the  premises  from  which  it  is  sought  to  remove  the  tenant ;  it 
must  not  be  too  general  or  indefinite.     Campbell  v.  Mallory,   22 


522    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


How.  183.     Where  there  is  no  contract  shown  on  part  of  alleged 
tenant,  and  no  rent  reserved  as  shown  by  the   affidavit,    it    is  in- 
sufficient.    Benjamin  v.  Benjamin,    5    N.    Y.    83.     An    affidavit 
alleging  in  substance  that  one  conveyed  the  premises   to    plain- 
tiff on  the  day  named,  and  defendant,  or  his  assigns,  were    then 
in  possession  as  tenants  at  sufferance  and  held   over,   sufficiently 
states  the  tenancy.     People  v.  Ulrich,  2  Abb.   28.     An   averment 
that  the  amount  specified  is  due  for  rent,  in  connection  with  a 
statement  that  defendant  holds  over  and  continues  in  possession 
of  the  premises,   is    sufficient.     People   v.    Lamb,    10    Hun,  348. 
Under  a  lease,  which  provides  that  an  assignment   without   the 
landlord's  consent  should  terminate  the  lease,  an  affidavit  that  he 
had  assigned,  without  averring  it  done  without   landlord's  con- 
sent, is  insufficient.      Chretien  v.  Doncy,    i    N.   Y.  419.     Proceed- 
ings were  held  void  where  affidavit  did  not  show  premises  in    the 
jurisdiction  of  the  justice,  nor  that  the  affiant  was  the  landlord. 
Ctiyler  v.   Crane,    25    Hun,   67.     An  affidavit    is    sufficient    if    it 
alleges  the  making  of  the  lease,  the  length  of  the  term,  the  rent, 
the  assignment  of  the  lease  to  defendants,  their  occupation,  non- 
payment of  rent,  and  the  demand  and  notice.     People  v.   Fowler, 
I  Hun,  104,  n.,  appeal  dismissed,  55  N.  Y.  675.     It  is  not  neces- 
sary to  show  that  the  demand  of  rent  was  made  by  the  landlord, 
it  may  be  made  by  his  agent.     People  v.  Stuyvesant,   i  Hun,    102. 
If  the  notice  of  demand  for  rent  is  in  writing,   it   must   be   in  the 
alternative,  requiring  payment  or  possession.     People  v.  Gross,  50 
I3arb.  231.     Demand  by  landlord  of  an  under-tenant  is  not   suf- 
ficient, it  must  be  made  of  tenant.     People  v.  Piatt,  43  Barb.    1 16. 
It  is  incumbent  on  the  landlord  to  establish,  by  affidavit,  that  the 
rent  has  become  due  and  payable,  that  its  payment  has  been  de- 
manded, and  default  made.     If  it  is  stated  demand  was  made  at 
tenant's  place  of  business  of  his  agent,  it   must   state  who  the 
agent  is,  or  the  nature  of  his  agency.      Wolcott  v.    Sehenck,    16 
How.  449.     The  affidavit  should  name  the  person  of  whom  the 
rent  was  demanded.     Rogers  v.  Lynds,   14  Wend.   172.     A  lessor 
is  not  bound  to  recognize  a  general  assignee  for  benefit  of  cred- 
itors, as  tenant,  and  demand  of  rent  may  be  made  of  the  tenant. 
Bokee  v.  Hammersley,  16  How.  461.     A  demand  of  rent   with  in- 
terest does  not  invalidate  the  proceedings.      Interest   is    an   inci- 
dent of  the  debt,  and  the  landlord  is  entitled  to  it    from  time  of 
default.     People  v.  Dudley,  58  N.  Y.  323.     Where  an  affidavit  has 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    523 

Art.  5.      Petition  by  Person  Entitled  to  Possession. 

been  used  in  a  proceeding  in  which  a  verdict  was  had,  it  cannot 
be  again  used  as  the  foundation  for  anew  proceeding,  and  if  so 
used,  the  landlord  and  judge  are  liable  in  trespass.  McCoy  v. 
Hyde,  8  Cow.  68.  In  cases  of  holding  over,  where  the  real  estate 
has  been  sold  under  execution,  and  the  party  against  whom  pro- 
ceedings are  instituted  holds  under  the  judgment  debtor  under 
title  subsequent  to  the  lien  of  the  judgment,  that  fact  must  dis- 
tinctly appear  in  the  afifidavit.  Hallcnbcck  v.  Gardner,  20 
Wend.  22.  Every  fact  necessary  to  give  jurisdiction  should  be 
alleged  in  the  petition.  Hallenbeck  v.  Gardner,  20  Wend.  22  ; 
Campbell  V.  Mallory,  22  Wow.  ^\-}^\  Pozucrs  w.  Witty,  42  id.  352. 
A  verification  need  not  be  in  the  exact  words  of  the  statute,  a 
substantial  compliance  is  sufficient.  BowgJien  v.  Nolan,  53  How. 
485. 

A  petition  which  does  not  show  that  three  days  have  expired 
since  service  of  the  alternative  notice  is  premature  and  insufficient 
to  confer  jurisdiction.  Bristed  v.  Harrell,  20  Misc.  348,  43  Supp. 
918.  Where  a  petition  alleged  that  certain  persons  held  over  as 
"  assignees  or  under-tenants,"  held,  that  this  is  a  mere  designation 
of  the  nature  of  the  possession.  Druuiniond  v.  Fisher,  43  St.  Rep. 
135,  16  Supp.  867.  Allegations  that  the  petitioner  became  the 
owner  by  a  deed  and  that  the  tenant  is  in  possession  under  an 
alleged  agreement  from  the  grantor  of  such  deed  are  sufficient  to 
show  relation  of  landlord  and  tenant.  Earle  v.  McGoldrick,  15 
Misc.  135,  36  Supp.  803,  71  St.  Rep.  825.  The  use  of  the  word 
"lessee"  in  an  allegation  of  the  petition  that  the  petitioner  is  the 
"  lessee  or  landlord  "  is  clearly  a  clerical  error,  and  may  be  disre- 
garded as  surplusage. — Sup.  Ct.  1898.  Fox  v.  Held,  24  Misc. 
184,  52  N.  Y.  Supp.  (86  St.  Rep.)  724.  Where  the  petition  does 
not  contain  a  sufficient  description  of  the  premises,  the  justice 
does  not  obtain  jurisdiction.  Wands  v.  Robarge,  24  Misc.  273, 
53  Supp.  700,  87  St.  Rep.  700.  Unless  there  is  a  joinder  of  issue 
by  the  service  of  a  verified  answer,  or  by  an  answer  which  can  be 
held  to  be  a  waiver  of  a  verified  answer,  the  fact  that  the  tenant 
appeared  on  the  return  day  and  raised  no  objection  is  not  a 
waiver  of  a  failure  to  verify  the  petition.  Wands  v.  Robarge, 
24  Misc.  273,  53  Supp.  700,  87  St.  Rep.  700. 

Where  there  was  a  failure  to  insert  the  date  in  a  verification  to 
a  petition  of  summary  proceedings,  it  will  be  assumed  that  the 
date  of  verification  of  the  petition  was  the  date  on  which  it  was 


524   PROCEEDINGS   TO   RECOVER   THE    POSSESSION   OF    LAND. 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

used,  and  on  which  the  precept  was  issued.  Griffin  v.  Barton,  20 
App.  Div.  512,  27  Supp,  121.  Unless  issue  has  been  joined  by 
the  fiUng  of  a  verified  answer,  or  by  an  answer  which  can  be  held 
to  be  a  waiver  of  a  verified  answer,  the  appearance  of  defendant 
on  return  day  of  precept  without  objecting  to  the  proceeding  is 
not  a  waiver  of  the  failure  of  landlord  to  verify  the  petition,  nor 
of  other  facts  going  to  question  of  jurisdiction,  and  the  judgment, 
although  void  and  defective  in  form,  may  be  made  the  subject  of 
an  appeal  by  the  tenant  to  the  end  that  the  errors  may  be  cor- 
rected. Wands  v.  Robarge,  24  Misc.  273.  For  a  verification 
which  the  court  seems  to  think  defective,  see  Griffinv.  Barton,  22 
Misc.  229.  Section  2235  does  not  require  that  the  petition 
should  name  the  tenant.  It  is  sufficient  that  the  person  against 
whom  the  proceeding  is  instituted  is  intelligibly  designated,  and 
the  words  "  John  Doe  "  and  "  Richard  Roe,"  "  under-tenants," 
is  a  sufficient  compliance  with  the  statute.  Asli  v.  Piirnell,  26 
Abb.  N.  C.  92,  19  Civ.  Pro.  234,  16  Daly,  189,  ii  Supp.  54,  32 
St.  Rep.  306.  The  petition  alleged  a  leasing  of  the  premises  for 
one  year,  but  that  defendant  was  in  possession  as  under-tenant 
of  the  lessee  and  that  defendant  held  over  after  the  expiration  of 
the  term ;  held,  sufficient  to  confer  jurisdiction.  Ward  v. 
Burgher,  90  Hun,  540,  35  Supp.  961,  70  St.  Rep.  635.  A  petition 
by  the  purchaser  of  real  property  at  a  sale  under  foreclosure  by 
advertisement  must  allege  that  the  mortgage  contained  a  power 
of  sale  and  that  the  mortgage  had  been  recorded  in  the  county 
wherein  the  property  was  situated.  Cowdreyv.  Turner,  85  Hun, 
451,  32  Supp.  889,  66  St.  Rep.  207.  A  petition  which  states  that 
the  petitioner  was  "  in  the  peaceable  possession  and  occupancy 
of  the  premises  "  and  "lawfully  entitled  to  remain  and  continue 
in  possession  thereof,"  when  made  under  •§  2235,  is  not  suf- 
ficient. It  must  contain  a  description  of  the  premises  of  which 
possession  is  claimed.  Sneider  v.  Leichman,  57  Hun,  561,  19  Civ. 
Pro.  217,  II  Supp.  434,  33  St.  Rep.  351.  Objection  that  the 
petition  is  not  sufficiently  definite  as  to  the  time  of  letting  is 
waived  when  the  tenant  goes  to  trial  and  litigates  the  issues. 
Wyckoffv.  Frommer,  12  Misc.  149,  33  Supp.  11,66  St.  Rep.  511. 
An  allegation  in  the  petition  that  the.  petitioner  became  the 
owner  of  the  premises  by  deed  from  the  life  tenant  and  that  the 
defendant  was  in  possession  under  an  alleged  agreement  for 
hiring  made  with  the  life  tenant  is  sufficient  to  show  relation  of 


PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND.    525 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

landlord  and  tenant  between  the  parties  to  the  proceeding. 
Grijjin  v.  Barton,  22  Misc.  229.  Where  the  petition  in  summary 
proceedings  alleges  that  the  petitioner,  when  evicted  from  the 
peaceable  possession  of  the  premises,  which  he  held  "by  virtue 
of  a  certain  arrangement  or  agreement  made  and  entered  into 
between  himself  and  Julia  Ross  as  lessee  of  said  entire  premises 
(of  which  the  floor  occupied  by  your  petitioner  as  aforesaid  forms 
a  part),  by  the  terms  of  which  agreement  your  petitioner  became 
duly  entitled  to  and  went  into  possession  of  the  floor  occupied 
by  him  as  aforesaid,"  fails  entirely  to  comply  with  the  provisions 
of  §  2235  of  the  Code  requiring  such  petition  to  describe  the 
premises  "  and  the  interest  therein  of  the  petitioner."  Such 
petition  confers  no  jurisdiction,  and  the  objection  that  it  does  not 
confer  jurisdiction  may  be  made  after  answer.  Potter  v.  Nezv 
York  Baptist  Mission  Soc,  23  Misc.  671. 

Service  of  notice  to  quit  is  not  invalid  because  the  original 
and  not  a  copy  thereof  was  served.  Service  may  be  made  by 
any  person  having  the  authority  of  the  landlord,  and  an  afifldavit 
of  service  of  such  notice  need  not  be  attached  to  the  petition, 
but  the  service  must  be  proved  by  the  common-law  evidence. 
Due  notice  to  quit  in  the  case  of  a  monthly  tenant  is  five  (5)  days, 
and  the  notice  to  quit  in  the  case  of  a  tenancy  at  will  need  not 
terminate  at  the  end  of  the  month.  Simpson  v.  Masson,  1 1  Misc. 
351,  32  Supp.  136,  65  St.  Rep.  278,  distinguishing  Posson  v. 
Dean,  8  Civ.  Pro.  177.  Notice  of  the  termination  of  tenancy  as 
basis  of  summary  proceedings  for  holding  over,  under  chap.  303, 
Laws  of  1882,  need  not  be  served  upon  sub-tenant.  Decker  w. 
Sexton,  19  Misc.  59,  yy  St.  Rep.  167^  43  Supp.  167.  A  petition  is 
defective  by  reason  of  the  failure  of  the  notary  to  sign  the  jurat, 
and  confers  no  jurisdiction  when  there  is  no  appearance,  and 
judgment  rendered  thereupon  is  void  absolutely.  Marehand  v. 
Haber,  16  Misc.  319,  ly  Supp.  950,  73  St.  Rep.  569.  A  petition 
which  alleged  a  verbal  letting  on  or  about  November  ist  for  the 
term  of  one  month  is  not  sustained  by  proof  of  an  oral  agreement 
in  April  from  month  to  month  "  as  long  as  the  rent  is  paid." 
Hoffman  v.  Van  Allen,  3  Misc.  99,  51  St.  Rep.  603,  22  Supp.  369. 
Where  a  tenant  from  month  to  month,  gives  notice  of  his  inten- 
tion to  quit  at  the  end  of  the  month  the  landlord  need  not  give 
five  days'  notice  to  quit  in  order  to  entitle  him  to  remove  a  ten- 
ant for  holding  over.     Hoske  v.   Gentzlinger,   37   Supp.  647,  87 


526   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


Hun,  3.  Assuming  that  a  month's  notice  is  not  necessary  in  case 
of  a  simple  tenancy  from  month  to  month,  yet  it  is  necessary 
where  the  tenancy  is  from  month  to  month  "  so  long  as  the  rent 
is  paid."  Hoffman  v.  Van  Allen,  22  Supp.  369,  3  Misc.  99,  51  St. 
Rep.  603.  Where  a  tenant  is  in  possession  under  an  indefinite 
monthly  hiring  and  pays  rent  in  advance,  the  most  that  can  be 
inferred  on  the  subject  of  notice  to  terminate  is  that  a  reasonable 
notice  should  be  given.  Ludington  v.  Garlock,  55  Hun,  612,  9 
Supp.  24,  29  St.  Rep.  600. 

Notice  to  a  monthly  tenant  to  vacate  which  contains  no  warn- 
ino-  that  on  his  failure  to  do  so  summary  proceedings  will  be  taken 
against  him  is  not  a  substantial  compliance  with  chapter  303  of 
the  Laws  of  1882,  relative  to  five  days'  notice  before  the  expira- 
tion of  the  term.     Fob  v.  Shalow,  16  Supp.  942. 

Precedent  for  Form  of  Notice  to  Quit  in  Tenancies  at  Will  or 

Sufferance. 

To  Henry  Slater,  te?iant: 

Please  take  notice  that  you  are  hereby  required  to  quit,  surrender, 
and  deliver  up  possession  of  the  rooms  on  first  floor  in  premises  known 
as  No.  243  Crown  Street,  in  the  city  of  Troy,  and  to  remove  therefrom 
on  the  ist  day  of  May,  1887,  pursuant  to  the  provisions  of  the  statute 
relating  to  the  rights  and  duties  of  landlord  and  tenant. 
Dated  Troy,  April  i,  1887. 

MICHAEL  HOWARD, 

Landlord. 

A  notice  of  thirty  days,  given  during  a  calendar  month  which 
contains  but  thirty  days,  is  held  to  be  a  month's  notice  within  the 
meaning  of  the  statute.  McGiiirc  v.  Ulrich,  2  Abb.  28.  The 
demand  of  rent  may  be  made  by  an  agent  as  well  as  by  the  land- 
lord himself,  and  interest  thereon  may  also  be  demanded  at  the 
same  time.  People  v.  Stuyvesant,  i  Hun,  102  ;  People  v.  Dudley, 
58  N.  Y.  323.  A  tenant  for  a  year,  holding  over,  need  not  be 
served  with  a  month's  notice  to  quit.  He  is  not  within  the  mean- 
ing of  the  statute  a  tenant  at  sufferance.  Rowan  v.  Lytle,  11 
Wend.  616.  Nor  is  a  tenant  for  life,  who  holds  over  after  the 
determination  of  the  life  estate,  entitled  to  notice  to  quit.  Liv- 
ingston V.  Tanner,  14  N.  Y.  64.  Tenants  from  year  to  year  are 
tenants  at  will,  and  one  month's  notice  is  sufficient  to  them,  as  is 
said  in  Wright  v.  Moslier,  16  How.  454.  And  in  Park  v.  Castle, 
19  id.   30,    it  is   held  that  such  a  tenant  may  proceed   against 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    527 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

without  notice,  as  holding  over  his  term  at  the  expiration  of  the 
year.  Whenever  the  holding  over  has  been  such,  after  the  ex- 
piration of  the  term  and  under  such  circumstances  as  to  indicate 
consent  on  the  part  of  the  landlord,  notice  is  necessary.  Schuy- 
ler v.  Smith,  51  N.  Y.  309  ;  Rowan  v.  Lytic,  1 1  Wend.  616  ;  Smith 
v.  Lit  tic  field,  51  N.  Y.  539. 

Where  premises  are  rented  from  month  to  month,  a  month's 
notice  to  quit  is  not  necessary.  People  w.  ScJiackno,  48  Barb.  551  ; 
People  V.  Goelet,  64  id.  476.  Where  a  tenant  holds  for  an  indefi- 
nite period,  and  with  no  rent  reserved,  he  is  a  tenant  at  will ;  and 
also  where  the  agreement  is  specific  that  he  shall  quit  possession 
at  the  demand  of  the  landlord  ;  and  therefore  a  month's  notice 
to  quit  may  be  given  in  either  case.  Nichols  v.  Williajus,  8  Cow. 
13;  Post  v.  Post,  14  Barb.  253;  Sarsfield  v.  Healy,  50  id.  245. 
The  notice  takes  effect  thirty  days  after  service,  and  the  naming  of 
a  day  on  which  the  time  will  expirelessthanthirty  days  after  serv- 
ice of  the  notice  does  not  vitiate  it.  Burns  v.  Bryant,  t^i  N.  Y.  453. 
But  the  notice  must  be  plain  and  explicit,  as  well  as  precise  and 
definite  in  its  terms.  People  v.  Gedney,  15  Hun,  475.  The  notice 
to  quit  must  be  given  by  the  person  holding  the  legal  title  to 
the  premises;  the  holder  of  a  contract  of  sale  cannot  give  a 
valid  notice,  nor  can  a  purchaser  who  has  not  obtained  his  deed. 
Recder  v.  Sayre,  70  N.  Y.  180. 

Precedents  for  Preliminary  Notice  to  Quit. 


Michael  Howard,  owner, 

agst. 

Henry    Slater,    and   all   persons   occupying   the 
premises  hereinafter  described. 


Please  take  notice  that  I  am  the  owner  of  the  premises  known  as  No. 
151  State  Street,  in  the  city  of  Troy,  having  purchased  the  same  at  an 
execution  sale  against  Samuel  Spencer,  and  having  received  my  deed 
thereon  and  perfected  my  title  thereunder,  and  that  I  require  all  persons 
occupying  said  property  to  quit  the  same  on  the  ist  day  of  May,  1887, 
pursuant  to  the  provisions  of  the  Code  of  Civil  Procedure,  and  fail  not^ 
under  the  pains  and  penalties  of  the  law. 

Dated,  Troy,  April  i,  1887.  MICHAEL  HOWARD, 

Owjter. 
To  Henry  Slater,  and  all  other  persons  occupying  the  said  premises. 


528   PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND. 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


Michael  Howard,  owner, 

agst. 

Henry  slater,   and  all   persons   occupying  the 
premises  hereinafter  described. 

Please  take  notice  that  I  am  the  owner  of  the  premises  known  as  No. 
89  Washington  Avenue,  in  the  city  of  Troy,  having  purchased  the  same 
at  a  foreclosure  sale  thereof,  and  having  received  my  deed  thereon,  and 
perfected  my  title  thereunder,  I  require  all  persons  occupying  said 
property  to  quit  the  same  on  the  ist  day  of  May,  1887,  pursuant  to  the 
provisions  of  the  Code  of  Civil  Procedure,  and  fail  not,  under  the  pen- 
alties of  the  law. 

Dated  New  York,  April  i,  1887.  MICHAEL  HOWARD, 

Owner. 
Tff  Henry  Slater,  and  all  other  persons  occupying  the  said  premises. 

A  notice  to  quit  served  by  the  original  landlord  after  he  has 
parted  with  the  title  to  the  premises  is  insufficient  as  a  basis 
for  summary  proceedings  brought  by  his  grantee.  Griffin  v. 
Barton,  22  Misc.  228,  49  Supp.  102 1,  83  St.  Rep.  102 1. 

The  demand  of  rent  to  furnish  a  basis  for  summary  proceedings 
must  be  personal ;  and  where  the  only  demand  was  by  mail,  and 
there  has  been  no  service  of  the  alternative  three  days'  notice, 
the  proceedings  cannot  be  maintained.  Zinsser  v.  Hcrruian,  23 
Misc.  645,  52  Supp.  107,  86  St.  Rep.  107. 

Form  of  Notice  where  Farm  is  Worked  on  Shares. 
To  Hiram  Garrison,  and  all  other  persons  occupying  the  said  premises  : 


Thomas  Harnden,  owner, 

a^st. 

Hiram  Garrison,  and  all  other  persons  occupying 
the  premises  hereinafter  described. 


Please  take  notice  that  I  am  the  owner  of  the  farm  known  as  "  The 
Broadhead  farm,"  situate  in  the  town  of  Ulster,  in  the  county  of  Ulster, 
and  State  of  New  York,  and  described  as  follows :  (here  insert  descrip- 
tion) which  farm  you,  the  said  Hiram  Garrison,  now  occupy  and  hold, 
under  an  agreement  with  me  to  cultivate  it  upon  shares,  and  the  time 
fixed  in  the  agreement  for  the  occupancy  of  the  said  Iliram  Garrison 
having  expired,  I  do  hereby  require  all  persons  occupying  the  said 
property  to  quit  the  same  on  the  5th  day  of  May,  1887,  pursuant  to  the 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    529 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


provisions  of  the  Code  of  Civil  Procedure,  and  fail  not,  under  the  pains 
and  penalties  of  the  law. 

Dated  April  2,  1887.  THOMAS  HARNDEN, 

Owner. 

Form  of  Notice  to  Squatter. 

To  Henry  Rightmyer  : 

Please  take  notice  that  I  am  the  owner  of  a  piece  or  parcel  of  land 
known  as  No.  3 1 2  Washington  Avenue,  in  the  city  of  Kingston,  described 
as  follows :  (insert  description)  upon  which  you  have  intruded,  or 
squatted  upon,  and  that  I  require  you  to  quit  the  said  premises  on  or 
before  the  ist  day  of  November,  1886,  pursuant  to  the  provisions  of 
§  2232  of  the  Code  of  Civil  Procedure,  and  that  any  permission  hereto- 
fore given  to  occupy  the  same  is  hereby  revoked. 

Dated  September  28,  1886. 

CHARLES  G.  CHALMERS, 

Owner. 

Precedent  for  Notice  to  Quit— Non-payment  of  Rent. 

To  John  Hess,  tenant  : 

You  will  please  take  notice  that  you  are  indebted  to  me  in  the  sum  of 
$100  for  one  month's  rent  of  the  premises  350  Washington  Avenue, 
in  the  city  of  Albany,  being  rent  from  July  i,  1886,  to  August  i,  1886  ; 
and  that  I  require  the  payment  of  said  rent  on  or  before  the  5th  day  of 
August,  1886,  or  the  possession  of  the  premises. 

Dated  August  2,  1886.  HENRY  RUTZER, 

Landlord. 

Form  of  Notice  by  Neighbor  Requiring  Landlord  to  Prosecute. 

To  Henry  French  : 

Please  take  notice  that  I  am  the  owner  of  the  premises  No.  56  Lib- 
erty Street,  in  the  city  of  Utica,  in  the  immediate  neighborhood  of  your 
house,  No.  60  Liberty  Street,  said  city,  and  that  your  said  house  is  oc- 
cupied and  used  as  a  bawdy-house,  and  that  I  require  you  to  make 
application  for  the  removal  of  the  person  so  using  and  occupying  the 
same.  In  case  you  do  not  make  such  application  within  five  days  after 
the  service  upon  you  of  this  notice  ;  or,  having  made  it,  do  not  in  good 
faith  diligently  prosecute  it,  I  will,  by  virtue  of  §  2237  of  the  Code  of 
Civil  Procedure,  make  and  prosecute  such  application,  to  the  end  that 
said  nuisance  may  be  abated.  SAMUEL  HAYES. 


Form  of  Petition  ty  Landlord   for   Non-payment  of  Rent  on 
Service  of  Notice. 

To  Hon.  William  S.  Kenyon,   County  Judge  of  Ulster   County: 

The  subscriber  apphes  for  process  and  proceedings  to  remove  John 
34 


530   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


Doyle,  the  tenant  and  occupant  of  the   premises   hereinafter  described, 
on  the  ground  set  forth  in  the  following  petition. 
Dated  Kingston,  May  5,  1886. 

DANIEL  GREENE. 


} 


State  of  New  York, 

County  of  Ulster, 

The  petition  of  Daniel  Greene  respectfully  shows  and  alleges,  that  he 
is  the  landlord  of  the  premises  hereinafter  mentioned,  and  that,  as  such, 
he  entered  into  an  agreement  with  John  Doyle,  as  tenant,  and  that  by 
the  terms  of  the  said  agreement  the  said  tenant  hired  from  your  peti- 
tioner, as  such  landlord,  the  four  rooms  on  the  first  floor  in  the  dwelling 
situated  at  No.  47  Harris  Street,  in  the  city  of  Kingston,  and  he,  the 
said  tenant,  in  and  by  the  said  agreement,  undertook  and  promised  to 
pay  your  petitioner,  as  rent,  the  sum  of  $40  per  month,  payable  monthly 
in  advance,  for  the  use  and  occupation  of  said  premises  ;  that  on  the 
ist  day  of  May,  1886,  there  was  due,  under  and  by  virtue  of  said  agree- 
ment, the  sum  of  $40,  for  one  month's  rent  of  the  premises,  before  de- 
scribed, to  wit :  from  the  ist  day  of  May,  1886,  to  the  ist  day  of  June, 
1886  ;  and  your  petitioner  further  says,  that  he  has  demanded  the  said 
rent  from  the  said  tenant,  since  the  same  became  due,  by  the  service  of 
a  notice  in  writing  upon  the  said  tenant,  on  the  20th  day  of  May,  1886, 
pursuant  to  the  statute,  requiring  the  payment  of  the  said  rent,  so  due, 
as  aforesaid,  within  three  days  thereafter,  or  the  possession  of  said 
premises ;  and  which  notice  was  served  upon  the  said  tenant,  by  de- 
livering to  the  said  John  Doyle  a  copy  of  such  notice,  and,  at  the  same 
time,  showing  him  the  original,  which  said  service  was  made  on  the 
premises,  at  ten  o'clock  a.  m.  on  said  day ;  that  the  said  tenant  has 
made  default  in  the  payment  thereof,  pursuant  to  the  agreement  under 
which  the  premises  are  held ;  and  that  the  said  tenant  holds  over  and 
continues  in  possession  of  the  same,  without  permission  of  your  peti- 
tioner, after  default  in  the  payment  of  rent  as  aforesaid.  Therefore, 
your  petitioner  prays  for  a  final  order  to  remove  the  said  John  Doyle 
from  said  premises.     And  your  petitioner  will  ever  pray. 

Dated  Kingston,  May  25,  1886. 

DANIEL  GREENE. 

i^Add  verification  as  to  pleading. ) 

Precedent  for  Petition  on  Expiration  of  Term. 

To  Hon.  William  S.  Kenvon,  County  fudge  of  Ulster  County  : 

The  subscriber  applies  for  process  and  proceedings  to  remove    Rich- 
mond DuBois,  the  tenant  and  occupant  of  the  premises  hereinafter   de- 
scribed, on  the  grounds  set  forth  in  the  following  petition. 
Dated  April  i,  1886. 

PETER  PHILLIPS. 

State  of  New  York,      ) 

County  of    Ulster,    J 

The  petition  of  Peter  Phillips  respectfully  alleges  and  shows,  that  he 
is  the  landlord  of  the  premises  hereinafter  described,  and  that  on   or 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION    OF   LAND.    53 1 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

about  the  ist  day  of  March,  1885,  he  rented  to  Richmond  DuBois  the 
third  floor  of  premises  No.  59  James  Street,  in  the  city  of  Kingston, 
for  the  term  of  one  year  from  March  i,  1885,  which  said  term  has  ex- 
pired, and  that  the  said  tenant  holds  over  and  continues  in  possession 
of  the  said  premises,  without  the  permission  of  your  petitioner,  after 
the  expiration  of  the  tenant's  term  therein.  Therefore,  your  petitioner 
prays  for  a  final  order  to  remove  the  said  Richmond  DuBois  from  said 
premises.     And  your  petitioner  will  ever  pray. 

Dated  Kingston,  April  i,  1886. 

PETER  PHILLIPS. 

i^Add  verification  as  to  pleading.) 

Precedent  for  Petition  for  Removal  of  Tenant  at  Will  or  Suffer- 
ance. 

{Application  same  as  above.) 
State  of  New  York,      "^ 

County   of  Ulster,    ] 

The  petition  of  Mark  Van  Cott  respectfully  alleges  and  shows,  that 
on  or  about  the  ist  day  of  September,  1882,  your  petitioner  let  and 
rented  unto  Simon  Brink,  during  the  will  and  pleasure  of  your  petitioner, 
the  house  and  premises  known  as  No.  175  Chambers  Street  in  the  city 
of  Kingston  ;  and  that  the  said  Simon  Brink  has  held  and  occupied 
the  said  premises  as  the  tenant  at  will  of  your  petitioner,  until  the  ex- 
piration of  such  tenancy  as  hereinafter  mentioned.  And  your  petitioner 
further  alleges  that  he  caused  notice  in  writing  to  be  served  on  the  said 
Simon  Brink  (here  state  the  manner  of  service)  on  the  ist  day  of  Oc- 
tober, 1882,  requiring  the  said  Simon  Brink  to  remove  from  the  said 
premises  on  or  before  the  ist  day  of  November,  1882;  that  the  time 
within  which  the  said  Simon  Brink  was  required  so  to  remove  has  ex- 
pired ;  and  that  the  said  Simon  Brink  holds  over  and  continues  in  pos- 
session of  said  premises  after  the  expiration  of  such  time  without  the 
permission  of  your  petitioner,  his  landlord.  Therefore,  your  petitioner 
prays  for  a  final  order  to  remove  the  said  Simon  Brink  from  said  prem- 
ises, and  your  petitioner  will  ever  pray. 

Dated  Kingston,  November  2,  1882. 

MARK  VAN  COTT. 

{Add  verification  as  to  pleading.) 

Precedent  for  Petition  by  Purchaser  at  Mortgage  Foreclosure. 

To  the  County  Court  of  Ulster  County  : 

The  petition  of  Amasa  Humphrey  respectfully  shows  to  this  court : 
That  on  the  14th  day  of  June,  1886,  your  petitioner  became  the  pur- 
chaser of  the  real  property  hereinafter  described  at  a  sale  thereof,  duly 
made  upon  the  foreclosure  of  a  mortgage  by  proceedings  taken  as 
prescribed  in  title  9,  of  chap.  17,  of  the  Code  of  Civil  Procedure,  which 
said  mortgage  was  dated  May  5,  1883,  and  was  executed  by  John 
Burns  and  Julia,  his  wife,  to  your  petitioner,  and  described  said  prop- 


532    PROCEEDINGS   TO    RECOVER  THE   POSSESSION    OF   LAND. 


Art.  5.     Petition  by  Person  Entitled  to  Possession. 


as 


erty  ;  that  the  title  of  your  petitioner  under  the  said  foreclosure  h 
been' duly  perfected  ;  that  said  John  Burns  holds  over  and  continues 
in  possession  of  said  real  property  after  a  notice  to  quit  has  been 
given  pursuant  to  §  2236  of  Code  of  Civil  Procedure,  in  behalf  of 
your  petitioner,  requiring  all  parties  or  persons  occupying  said  prop- 
erty to  quit  the  same  by  the  9th  day  of  February,  1887,  which  said 
notice  was  served  personally  upon  the  said  John  Burns,  on  the  8th 
day  of  January,  1887,  and  after  the  perfecting  of  title  as  aforesaid. 

That  your  petitioner  owns  said  property  in  fee.  (Insert  descrip- 
tion.) 

Wherefore,  your  petitioner  prays  for  a  final  order  to  remove  said  John 
Burns  from  said  real  property  according  to  the  provision  of  title  2,  chap. 
17,  of  Code  of  Civil  Procedure. 

(Dated.)  (Signatures.) 

i^Add  verification  as  to  pleading.) 

Petition  for  Precept  for  Farm  Let  on  Shares. 

To  Charles  M.  Hadden,  Esq.,  Justice  of  the  Peace  in  the  town  of 
Hardenbnrgh,  in  the  county  of  Ulster.,  Neiv  York  : 
The  petitioner  named  below  hereby  applies  for  process  and  proceed- 
ings to  remove  Clarence  Johnson  from  the  possession  of  the  premises 
hereinafter  mentioned,  on  the  ground  set  forth  in  the  following  peti- 
tion. GEORGE  GARRISON. 

State  of  New  York,      ) 

County  of    Ulster,    \ 

The  petition  of  George  Garrison  respectfully  shows  that,  at  the  time 
of  making  of  the  agreement  hereinafter  mentioned,  your  petitioner  was 
the  owner  of  the  farm  known  as  the  "  Johnson  farm,"  situate  in  the 
town  of  Hardenburgh,  in  the  county  of  Ulster,  in  the  State  of  New 
York,  and  described  as  follows,  to  wit  (here  insert  description):  That 
being  such  owner,  your  petitioner  did  on  the  ist  day  of  April,  1883, 
enter  into  an  agreement  with  Clarence  Johnson,  whereby  said  Johnson 
agreed  with  your  petitioner  to  cultivate  the  said  property  upon  shares 
for  the  term  of  one  year,  which  term  expired  on  the  ist  day  of  April, 
1884,  and  that  after  the  expiration  of  said  term,  to  wit:  on  the 
4th  day  of  April,  1884,  a  notice  in  writing  in  behalf  of  your  petitioner, 
requiring  all  persons  occupying  the  said  property,  to  quit  the  same  on 
the  15th  day  of  April,  1884,  was  duly  served  upon  the  said  Clarence 
Johnson  (here  state  mode  of  service),  and  that  notwithstanding  the  ex- 
piration of  the  time  fixed  in  said  agreement,  and  of  the  expiration 
of  the  term  and  of  the  time  specified  in  said  notice,  the  said 
Clarence  Johnson  holds  over  and  continues  in  possession  of  the  said 
premises  without  the  permission  of  your  petitioner.  Wherefore,  your 
petitioner  prays  for  a  final  order  to  remove  the  said  Clarence  Johnson 
from  said  premises,  and  your  petitioner  will  ever  pray. 

Dated  April  16,  1884.  GEORGE  GARRISON. 

{^Add  verification  as  to  pleading.) 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    533 
Art.  5.     Petition  by  Person  Entitled  to  Possession. 

Precedent  for  Petition  to  Remove  Squatters. 

To  Hon.  William  S.  Kenyon,  County  fudge  of  Ulster  County  : 

The  subscriber  applies  for  process  and  proceedings  to  remove  Law- 
rence Jennings,  the  tenant  and  occupant  of  the  premises  hereinafter 
described,  on  the  grounds  set  forth  in  the  petition. 

JAMES  BARD. 
State  of  New  York,  ) 

County  of  Ulster,  \ 

The  petition  of  James  Bard  respectfully  alleges  and  shows,  that  he  is 
the  owner  in  fee-simple  (or  state  the  nature  of  the  estate  held  by  the 
petitioner)  and  entitled  to  the  possession  of  (here  describe  the  property) 
in  the  city  of  Kingston. 

Your  petitioner  further  alleges  and  shows,  that  Lawrence  Jennings 
did,  contrary  to  law  and  without  the  permission  of  your  petitioner,  or 
anybody  authorized  to  give  such  permission,  intrude  into  and  squat 
upon  the  said  parcel  of  land,  and  that  he  still  squats  upon  and  holds 
possession  of  said  land  and  premises  without  the  permission  of  your 
petitioner,  and  has  refused  and  still  refuses  to  remove  therefrom. 

Your  petitioner  further  shows,  that  on  the  3d  day  of  June,  1886,  a 
notice  in  writing  in  behalf  of  your  petitioner,  requiring  all  persons  oc- 
cupying the  said  property  to  quit  the  same  on  or  before  the  5th  day  of 
July,  1886,  has  been  served  upon  the  said  Lawrence  Jennings  by  (here 
state  the  mode  of  service),  and  that  the  said  Lawrence  Jennings  holds 
over  and  continues  in  possession  of  the  said  property  after  such  notice 
to  quit  has  been  given,  and  after  the  expiration  of  the  time  therein 
specified,  and  refuses  to  remove  therefrom,  and  that  said  holding  over 
is  without  the  permission  of  your  petitioner.  Wherefore,  your  petitioner 
prays  for  a  final  order  to  remove  the  said  Lawrence  Jennings  from  said 
premises,  and  your  petitioner  will  ever  pray. 

Dated  Kingston,  July  6,  1886. 

JAMES  BARD. 

{Add  verification  as  to  pleading^ 

Precedent  for  Form  of  Petition  for  Forcible  Entry  and  Detainer. 

To  Hon.  William  S.  Kenyon,  County  fudge  of  Ulster  County  : 

The  petition  of  Joseph  G.  Krom,  of  the  city  of  Kingston,  Ulster 
County,  respectfully  shows  that  he  is  the  owner  in  fee  of  the  premises 
hereinafter  mentioned,  and  that  before  and  on  the  28th  day  of  Novem- 
ber last,  and  thence  hitherto,  he  as  such  owner  was  in  the  lawful,  actual, 
and  peaceable  occupation  and  possession  of  said  premises,  to  wit :  (here 
insert  description  of  property). 

That  while  your  petitioner  was  so  in  such  lawful,  actual,  peaceable 
occupation,  and  on  or  about  the  day  and  year  last  aforesaid,  certain  per- 
sons, among  others  James  Dunnigan  and  Frank  Banks,  did  unlawfully, 
and  against  the  will  of  your  petitioner,  make  an  unlawful  and  forcible 
entry  into  and  upon  said  premises  with  a  strong  hand,  and  multitude  of 


534   PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF    LAND. 

Art.  5.     Petition  by  Person  Entitled  to  Possession. 

men,  and  did  then  and  there  unlawfully  and  forcibly  eject  and  expel 
your  petitioner  and  his  family,  employes  and  agents,  from  said  prem- 
ises, and,  in  like  manner,  on  said  28th  day  of  November  last,  and  on 
divers  days  and  times  since  the  said  28th  day  of  November,  did  hold  the 
possession  of  said  premises  by  force,  and  that  the  said  James  Dunnigan 
and  Frank  Banks  have  ever  since  held,  and  still  unlawfully  and  forcibly 
hold  in  like  manner,  your  petitioner  and  his  family  out  of  possession  of 
said  premises,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided.  Your  petitioner,  therefore,  prays  for  a  final  order  to  remove 
the  said  James  Dunnigan  and  Frank  Banks  from  the  possession  of  said 
premises. 

Dated  Kingston,  December  13,1886.  JOSEPH  G.  KROM. 

[Add  verification.) 

Precedent  for  Petition — Bawdy-House. 

T^  Hon.  William  S.  Kenyon,  County  Judge  of  Ulster  County  : 

The  subscriber  applies  for  process  and  proceedings  to  remove  John 
Doyle,  the  tenant  and  occupant  of  the  premises  hereinafter  described, 
on  the  grounds  set  forth  in  the  following  petition. 

Kingston,  May,  23,  1886.  DANIEL  GREENE. 

State  of  New  York, 

County  of   Ulster, 

The  petition  of  Daniel  Green  respectfully  alleges  and  shows  that  he 
is  the  landlord  of  the  premises  hereinafter  mentioned  ;  that  on  or  about 
the  1st  day  of  September,  1885,  deponent  entered  into  an  agreement 
with  John  Doyle  as  tenant,  by  the  terms  of  which  agreement  the  said 
tenant  hired  from  your  petitioner,  as  landlord,  the  dwelling-house  situ- 
ated and  known  as  No.  47  Harris  Street,  in  the  city  of  Kingston,  for 
the  term  of  one  year  from  September  i,  1885,  at  an  agreed  rental  ;  that 
the  said  tenant  entered  into  the  occupation  of  said  premises  and  is  now 
in  possession  and  occupation  of  the  same.  The  said  premises  are  now 
being  used  and  occupied  by  the  said  tenant  (and  by  other  persons  con- 
nected with  him  therein,  whose  names  your  petitioner  cannot  ascertain), 
as  a  bawdy-house  and  house  of  assignation  for  lewd  persons,  for  pur- 
poses of  prostitution  and  as  a  place  of  resort  for  such  persons  for  similar 
purposes,  contrary  to  the  statute  of  the  State  of  New  York,  in  such  case 
made  and  provided,  and  that  the  said  tenant  continues  in  possession  of 
the  same,  and  uses  and  occupies  said  premises  as  such  bawdy-house 
and  liouse  of  assignation,  in  violation  of  the  law  and  without  the  per- 
mission of  the  landlord.  Therefore,  your  petitioner  prays  for  a  final 
order  to  remove  the  said  John  Doyle  from  said  premises.  And  your 
petitioner  will  ever  pray.  DANIEL  GREENE. 

Dated  Kingston,  May  25,  1886. 

State  of  New  York,    | 

County  of  Ulster,  ) 

Daniel  Greene,  bemg  duly  sworn,  says  that  he  is  the  petitioner  above 
mentioned,  and  that  the  foregoing  petition  is  true  to  his  own  knowledge, 


PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND.    535 

Art.   6.     Precept,  and  how  Served. 

except  as  to  the  matters  therein  stated  to  be  alleged  on  information  and 
belief,  and  that  as  to  those  matters  he  believes  it  to  be  true. 

DANIEL  GREENE. 
Sworn  to  before  me.  I 
May  25,    1886.      j 

JOHN  RIDER, 

Notary  Public^    Ulster  County. 

ARTICLE  VI. 

Precept,  and    how  Served.    §§  2238,  2239,  2240,  2241, 

2242,  2243. 

§  2238.  Precept. 

The  judge  or  justice,  to  whom  a  petition  is  presented,  as  prescribed  in  either  of  the 
foregoing  sections  of  this  title,  must  thereupon  issue  a  precept,  directed  to  the  person 
or  persons  designated  in  the  petition,  as  being  in  possession  of  the  property,  and  re- 
quiring him  or  them  forthwith  to  remove  from  the  property,  describing  it,  or  to  show 
cause,  before  him,  at  a  time  and  place  specified  in  the  precept,  why  possession  of  the 
property  should  not  be  delivered  to  the  petitioner,  or,  in  the  case  specified  in  the  last 
section,  to  the  owner  or  landlord.  The  precept  must  be  returnable,  not  less  than 
three  nor  more  than  five  days  after  it  is  issued  ;  except  that,  where  the  proceeding  is 
taken,  upon  the  ground  that  a  tenant  continues  in  possession  of  demised  premises 
after  the  expiration  of  his  term,  without  the  permission  of  his  landlord,  and  the  appli- 
cation is  made  on  the  day  of  the  expiration  of  the  lease,  or  on  the  next  day  thereafter, 
the  precept  may,  in  the  discretion  of  the  judge  or  justice,  be  made  returnable  on  the 
day  on  which  it  is  issued,  at  any  time  after  twelve  o'clock,  noon,  and  before  six  o'clock 
in  the  afternoon. 

§  30,  R.  S.,  am'd ;  L.  1S51,  ch.  460 ;  L.  1868,  ch.  S28,  §  i  (7  Edm.  355). 

§  2239.  Id. ;  in  New  York  City. 

In  the  city  of  New  York,  where  the  application  is  made  to  a  district  court,  the  peti- 
tion must  be  filed  with,  and  the  precept  must  be  issued  by,  the  clerk  of  the  court ;  and 
the  precept  must  be  made  returnable  before  the  court,  at  the  place  designated,  pur- 
suant to  law,  for  holding  the  court ;  and  all  subsequent  proceedings  in  the  cause  must 
be  had  at  that  place,  except  as  otherwise  prescribed  in  §  2246  of  this  act.  If,  upon 
the  return  of  the  precept,  or  upon  an  adjourned  day,  the  justice  is  unable,  by  reason 
of  absence  from  the  court-room,  or  sickness,  to  hear  the  cause,  or  it  is  shown  by  affi- 
davit that  he  is  for  any  reason  disqualified  to  sit  in  the  cause,  or  is  a  necessary  and 
material  witness  for  either  party,  a  justice  of  any  other  district  court  of  the  city  may 
act  in  his  place  at  the  same  court-room. 

L.  1S63,  ch.  189  (6  Edm.  86) ;  Co.  Proc.  §  66 ;  L.  1876,  ch.  356,  §  i  ;  L.  1877,  ch.  1S7, 
§  I.     See  §  3208. 

§  2240.    Id. ;  how  served. 

The  precept  must  be  served  as  follows  : 

1.  By  delivering,  to  the  person  to  whom  it  is  directed,  or  if  it  is  directed  to  a  cor- 
poration, to  an  officer  of  the  corporation,  upon  whom  a  summons,  issued  out  of  the 
Supreme  Court,  in  an  action  against  the  corporation,  might  be  served,  a  copy  of  the 
precept,  and  at  the  same  time  showing  him  the  original. 

2.  If  the  person,  to  whom  the  precept  is  directed,  resides  in  the  city  or  town  in  which 
the  property  is  situated,  but  is  absent  from  his  dwelling-house,  service  may  be  made 


536   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 
Art.   6.     Precept,  and  how  Served. 


by  delivering  a  copy  thereof  at  his  dwelling-house,  to  a  person  of  suitable  age  and  dis- 
cretion, who  resides  there ;  or,  if  no  such  person  can,  with  reasonable  diligence,  be 
found  there,  upon  whom  to  make  service,  then  by  delivering  a  copy  of  the  precept,  at 
the  property  sought  to  be  recovered,  either  to  some  person  of  suitable  age  and  discre- 
tion residing  there,  or  if  no  such  person  can  be  found  there,  to  any  person  of  suitable 
age  and  discretion  employed  there. 

3.  Where  service  cannot,  with  reasonable  diligence,  be  made,  as  prescribed  in  either 
of  the  foregoing  subdivisions  of  this  section,  by  affixing  a  copy  of  the  precept  upon  a 
conspicuous  part  of  the  property. 

If  the  precept  is  returnable  on  the  day  on  which  it  is  issued,  it  must  be  served  at 
least  two  hours  before  the  hour  at  which  it  is  returnable ;  in  every  other  case,  it  must 
be  served  at  least  two  days  before  the  day  on  which  it  is  returnable. 

§  32,  R.  S. ;  L.  1857,  ch.  6S4,  and  L.  186S,  ch.  828  (7  Edm.  356). 

§  2241.  Duty  of  persons  to  whom  copy  of  precept  is  delivered. 

A  person,  to  whom  a  copy  of  a  precept,  directed  to  another,  is  delivered,  as  pre- 
scribed in  this  title,  must,  without  any  avoidable  delay,  deliver  it  to  the  person  to 
whom  it  is  directed,  if  he  can  be  found  within  the  same  town  or  city  ;  or,  if  he  cannot 
be  so  found,  to  his  agent  therein  ;  and  if  neither  can  be  so  found,  after  the  exercise  of 
reasonable  diligence,  before  the  time  when  the  precept  is  returnable,  to  the  judge  or 
justice  who  issued  the  same,  at  the  time  of  the  return  thereof,  with  a  written  state- 
ment indorsed  thereupon,  that  he  has  been  unable,  after  the  exercise  of  reasonable 
diligence,  to  find  the  person  to  whom  the  precept  is  directed,  or  his  agent,  within  the 
town  or  city.  A  person,  who  wilfully  violates  any  provisions  of  this  section,  is  guilty 
of  a  misdemeanor  ;  and,  if  he  is  a  tenant  upon  the  property,  forfeits  to  his  landlord  the 
value  of  three  years'  rent  of  the  premises  occupied  by  him.  A  copy  of  this  section 
must  be  indorsed  upon  each  copy  of  a  precept,  served  otherwise  than  personally  upon 
the  person  to  whom  it  is  directed. 

L.  1868,  ch.  828,  %  3{7  Edm.  356);  and  i  R.  S.  748,  §  27  (i  Edm.  699). 

§  2242.  When  precept  to  be  served  on  landlord  of  bawdy- 
house,  etc. 

Where  the  case  is  within  §  2237  of  this  act,  the  precept  must  be  directed  to  and 
served  upon  the  owner  or  landlord,  or  his  agent,  and  also  upon  the  tenant  or  occu- 
pant of  the  property.  Either  or  both  of  them  may,  upon  the  return  day,  appear  and 
show  cause  why  the  tenant  or  occupant  should  not  be  removed  from  the  property. 

Parts  of  §§  63  and  64  ;  L.  1868,  ch.  764  (7  Edm.  336). 

§  2243.  Proof  of  service  of  precept. 

At  the  time  when  the  precept  is  returnable,  the  petitioner  must,  unless  the  adverse 
party  appears,  make  due  proof  of  the  service  thereof,  showing  the  time,  and  the  place 
and  manner  of  service ;  and,  unless  service  was  made  personally  upon  the  adverse 
party,  or  by  affixing  a  copy  of  the  precept,  the  name  of  the  person  to  whom  a  copy  of 
the  precept  was  delivered,  if  his  name  can  be  ascertained  with  reasnnable  diligence. 
Where  service  is  made  by  a  sheriff,  constable,  or  marshal,  it  may  be  proved  by  his 
certificate,  stating  the  facts. 

§  33,  R.  S.;    akso  §  32,  am'd  ;   L.  186S,  ch.  828   (7  Edm.  336). 

The  summons  need  not  show  that  the  premises  are  situated 
within  the  judicial  district  in  the  city  of  New  York  in  which  the 
proceedings  arc  instituted,  it  is  sufficienc  if  it  properly  describe 
the  premises.     Pi^op/c  v.  AW/j',  20  Hun,  549.     The  summons  must 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    537 
Art.  6.     Precept,  and  how  Served. 

be  directed  to  the  tenant  or  occupant  by  name,  and  where  the 
direction  was  left  in  blank,  the  proceedings  were  held  to  be  de- 
fective, though  service  was  made  upon  the  proper  party,  and  an 
appearance  by  the  tenant,  for  the  purpose  of  objecting,  is  not 
a  waiver  of  the  defect.  The  premises  too  must  be  properly 
described.  Cunningham  v.  Goelet,  4  Den.  71  ;  Hill  v.  Stocking, 
6  Hill,  314;  Deuel  v.  Rust,  24  Barb.  438.  Where  the  proceed- 
ings were  instituted  against  two,  both  of  whom  were  named  in 
the  afifidavit,  and  the  summons  was  directed  to  one  of  them,  and 
"  an)/  other  person  in  possession  of  the  premises,"  and  both 
appeared  before  the  officer,  made  affidavit  and  had  a  trial  by 
jury  without  objecting  to  the  summons,  it  was  held  it  was  suffi- 
cient. Sims  V.  Humphrey,  4  Den.  185.  In  a  case  of  holding 
over  the  term  without  permission,  it  was  held  that  it  is  discre- 
tionary with  the  magistrate,  when  the  summons  is  not  issued  on 
the  same  day  the  term  expires,  to  make  the  summons  returnable 
on  any  day  within  the  five  days.  BusJiucll  v.  Ostrandcr,  30  How. 
93.  But  it  is  held,  on  the  contrary,  that  a  summons  issued  on  the 
last  day  of  the  term  may  be  made  returnable  on  the  same  day, 
but  not  on  the  day  following.  Lnhrs  v.  Co  minors,  30  Hun,  468 
And  the  same  rule  is  held  in  People  v.  Lane,  2  T.  &  C.  522.  The 
summons  in  a  proceeding  by  a  claimant  under  a  tax  deed  in 
Brooklyn  should  be  returnable  in  not  less  than  three  days,  nor 
more  than  five  days ;  one  returnable  on  the  same  day  is  unau- 
thorized and  confers  no  jurisdiction.  People  v.  Andrews,  52 
N.  Y.  445.  The  summons  should  require  the  defendant  forth- 
with to  remove  from  the  premises,  or  show  cause  why  posses- 
sion of  the  premises  should  not  be  delivered  to  the  landlord. 
Deuel  V.  Rust,  24  Barb.  438.  A  summons,  returnable  on  the  day 
on  which  it  was  issued,  gives  no  jurisdiction,  except  in  case  of 
holding  over  by  a  tenant  after  expiration  of  his  term.  People  v. 
Andrezvs,  52  N.  Y.  445.  A  summons  issued  on  the  21st  day  of 
November,  and  returnable  on  the  25th,  is  returnable  in  not  less 
than  three  nor  more  than  five  days,  and  is  properly  served  on 
the  23d,  at  least  two  days  before  the  return  day.  People  v. 
Marvin  Safe  Co.,  5  Hun,  218.  A  clerical  error  in  preparing  the 
copy  of  the  summons,  so  that  it  is  made  returnable  at  an  earlier 
day  than  that  specified  in  the  original,  will  not  render  the  pro- 
ceedings nugatory  where  the  tenant  appears  in  accordance  with 
the  copy  served,  and  makes  no  objection  to   the   error,  in   such 


538   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 
\rt.  6.     Precept,  and  how  Served. 

case  the  assent  of  the  parties  that  the  summons  was  returnable 
on  the  day  specified  will  of  itself  confer  jurisdiction,  although 
the  day  specified  in  the  original  falls  on  Sunday.  Nemetty  v. 
Naylor,  lOO  N.  Y.  562.  The  precept  to  dispossess  a  tenant 
holding  over  after  the  expiration  of  his  term  must  be  returnable 
not  less  than  three  days  after  its  issue.  It  cannot  be  returnable 
the  day  after  issue,  and  gives  no  jurisdiction.  Liihrs  v. 
CoJHJHOss,  13  Abb.  N.  C.  88.  An  error  in  the  summons  and 
judgment  by  which  the  premises  appear  larger  than  those  de- 
scribed in  the  af^davit,  and  larger  than  those  actually  occupied, 
is  clerical  merely,  and  does  no  harm.  Warner  v.  Henderson,  13 
Week.  Dig.  143.  Where  the  summon^  was  made  returnable  on 
December  10,  which  was  Sunday,  but  in  the  copy  served  the 
return  day  was  stated  to  be  December  9,  and  on  that  day  parties 
appeared  and  consented  to  proceed  without  any  objection  being 
taken  on  account  of  the  mistake,  held,  that  it  was  thereby 
waived,  and  the  assent  to  proceed  conferred  jurisdiction,  and  the 
question  could  not  be  reviewed  in  a  collateral  proceeding. 
Nemetty  v.  Naylor,  100  N.  Y.  562. 

Precedent  for  Form  of  Precept. 
Before  Hon.  William  S.  Kenyon,  County  Judge. 

James  Mayor 

agst. 

George  Jefferson. 


TTie  People  of  the  State  of  New  York,  to  George   Jefferson,    tenant 
above  named : 
You   are  hereby  required   forthwith    to   remove  from   the   premises 
designated  and  described  as  follows,  to  wit :  The  dwelling  situated  and 
known  as  No.  29  Broad  Street,  in  the  city  of  Kingston,  or  to  show  cause 
before  Hon.  William   S.  Kenyon,   county  judge,  at   the  court-room   of 
said  county  judge,  in  the  city  of  Kingston,  on  the  9th  day  of  September, 
1886,  at  ten  o'clock  in  the  forenoon  of  that  day,  why  the  possession  of 
the  said  premises  should  not  be  delivered  to  the  landlord. 
Dated  the  5th  day  of  September,  1886. 

WILLIAM  S.  KENYON, 

Ulster  County  Judge. 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    539 
Art.  6.     Precept,  and  how  Served. 

Precedent  for  Precept. 

To  James  Dunnigan,  Frank  Banks,  and  every  person  in  possession  of 
the  premises  hereinafter  described^  or  elaiming  the  possession  thereof : 

Whereas,  Joseph  G.  Krom  has  presented  to  me  his  petition  in  writ- 
ing, subscribed  by  him  and  duly  verified  by  his  oath,  which  said  peti- 
tion sets  forth  that  he,  the  said  Joseph  G.  Krom,  is  the  owner  of  the 
premises  hereinafter  mentioned,  and  that  on  the  28th  day  of  November 
last,  he,  as  such  owner,  was  in  the  lawful  and  actual  possession  and 
occupation  of  said  premises,  and  while  he  was  in  such  lawful  and  actual 
occupation,  and  on  or  about  the  day  and  year  last  aforesaid,  you,  the 
said  James  Dunnigan  and  Frank  Banks,  did  make  a  forcible  entry  into 
and  upon  said  premises,  and  did  forcibly  eject  the  said  petitioner  there- 
from, and  that  you  in  like  manner  still  hold  the  said  petitioner  out  of 
the  possession  of  the  said  premises,  as  by  reference  to  said  petition 
will  appear  :  This,  therefore,  is  to  require  you,  and  each  of  you,  forth- 
with to  remove  from  said  premises,  to  wit:  (here  describe  property)  or 
show  cause  before  me,  county  judge  of  Ulster  County,  at  the  chambers  of 
the  county  judge,  in  the  city  of  Kingston,  on  the  i8th  day  of  Decem- 
ber, 1886,  at  one  o'clock  in  the  afternoon,  why  possession  of  said  prem- 
ises should  not  be  returned  to  the  said  Joseph  G.  Krom,  the  petitioner. 

Witness,  Hon.  William  S.  Kenyon,  county  judge  of  Ulster  County,  at 
said  city  of  Kingston,  December  14,  1886. 

WILLIAM  S.  KENYON, 

County  Judge  of  Ulster  County. 

Precedent  for  Warrant. 

To  the  Sheriff  of  the  County  of  Ulster  : 

Whereas,  Joseph  G.  Krom,  by  petition  duly  made  and  verified  by 
him  and  presented  to  me,  county  judge  of  Ulster  County,  did  allege  and 
prove  that  he  was  peaceably  in  actual  possession  of  (here  describe 
property),  and  that  James  Dunnigan  and  Frank  Banks,  on  the  28th  day 
of  November,  18S6,  with  strong  hand  and  a  multitude  of  people,  did 
make  forcible  entry  into  and  upon  said  premises,  and  did  wrongfully 
exclude  the  said  Joseph  G.  Krom  therefrom,  and  has  ever  since  wrong- 
fully held  the  said  Joseph  G.  Krom  out  of  possession  of  said  property  : 

Whereupon,  I  issued  a  precept  requiring  the  said  James  Dunnigan 
and  Frank  Banks  forthwith  to  remove  from  the  said  premises,  .or  show 
cause  before  me  at  a  certain  time,  now  passed,  why  the  possession  of 
the  said  premises  should  not  be  delivered  to  the  said  petitioner  ;  and 
no  good  cause  having  been  shown,  or  any  way  appearing  to  the  con- 
trary, and  due  proof  of  the  service  of  such  precept  having  been  made 
to  me :  Therefore,  in  the  name  of  the  people  of  the  State  of  New  York, 
you  are  commanded  to  remove  the  said  James  Dunnigan  and  Frank 
Banks,  and  all  persons,  from  the  said  premises,  and  put  the  petitioner 
in  full  possession  thereof. 

In  witness  whereof,  I  have  subscribed  to  these  presents  this  28th  day 
of  December,  1887.  WILLIAM  S.  KENYON, 

County  Judge  of  Ulster  County. 


540   PROCEEDINGS   TO   RECOVER  THE   POSSESSION   OF   LAND. 


Art.  6.     Precept,  and  how  Served. 


An  affidavit  that  the  copy  was  left  with  a  person  residing  on  the 
premises  is  insufficient,  as  not  showing  the  absence  of  the  defend- 
ant or  that  the  copy  was  left  with  a  proper  person,  as  required  by 
statute,  and  the  service  bad,  if  it  fails  to  show  the  place  where  it  was 
left  is  the  plaintiff's  residence.  Cameron  v.  McDonald,  i  Hill, 
512  ;  People  V.  Matthezvs,  43  Barb.  168,  affirmed,  38  N.  Y.  451. 
It  was  held  under  the  statute  that  the  proof  was  insufficient  where 
it  was  alleged  the  service  was  upon  an  under-tenant  on  the  demised 
premises,  and  that  the  tenant  was  absent  from  his  residence  without 
stating  that  his  residence  was  on  the  demised  premises.  People  v. 
Piatt,  43  Barb.  116.  If  the  summons  is  directed  to  the  original 
lessee,  but  served  only  on  an  under-tenant  in  person,  the  service 
is  insufficient ;  it  should  be  served  on  both.  Matter  of  Glenn,  i 
How.  213.  A  slight  and  immaterial  variance  between  the  orig- 
inal summons  and  the  copy  served,  where  the  person  is  not  mis- 
led thereby,  will  be  disregarded.  People  v.  Flannigan,  3  Week. 
Dig.  579.  Where  service  is  sworn  to,  as  being  of  a  date  prior  to 
the  date  of  the  summons  itself,  the  variance  is  fatal  ;  it  is  not  a 
mere  clerical  error  that  may  be  corrected.  People  v.  Board- 
man,  4  Keyes,  59.  Service  on  the  general  agent  of  a  corpora- 
tion is  sufficient.  People  v.  City  of  Troy,  6  Alb.  L.  J.  326.  An 
affidavit  of  service  of  summons  on  two  absent  tenants,  showing 
that  the  service  was  made  on  both  tenants  by  leaving  one  copy 
of  the  summons  with  a  person  of  mature  age  and  discretion,  will 
not  give  jurisdiction.  People  v.  De  Camp,  12  Hun,  378.  A  re- 
turn by  the  constable  of  service  on  the  defendant  personally,  by 
leaving  the  original  and  delivering  a  copy  thereof,  is  due  proof 
of  service.  People  v.  Lamb,  10  Hun,  348.  Personal  service  of 
a  summons,  out  of  the  jurisdiction  of  the  court  or  magistrate 
issuing  it,  is  invalid.  Beach  v.  Bainbridge,  7  Hun,  81.  In 
summary  proceedings  under  Laws  of  1854,  chapter  863,  as 
amended  by  Laws  of  1873,  for  possession  of  premises  claimed 
under  a  tax  sale,  service  of  notice  must  be  proved  by  common- 
law  evidence  ;  a  copy  of  the  notice  with  affidavit  is  not  sufficient. 
People  V.  Walsh,  87  N.  Y.  481.  An  objection  to  the  regularity  of 
the  service  of  the  summons,  which  is  taken  preliminarily  and  over- 
ruled, and  an  exception  taken,  is  not  waived  by  a  subsequent 
appearance  on  the  hearing.  People  v.  Foivler,  2  Week.  Dig.  560. 
And  in  People  v.  Johnson,  i  T.  &  C.  578,  following  4  Denio,  71,  it 
is  held  that  an  appearance  for  the  sole  purpose  of  objecting  is 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    54I 


Art.  6.     Precept,  and  how  Served. 


not  a  waiver  of  any  previous  defects  in  the  proceeding.  An- 
omission  to  show  the  original  summons  renders  the  service 
irregular.     Duell  v.  Rust,  24  Barb.  438. 

The  constable  who  made  the  service  may  be  sworn  and  testify 
to  the  facts  relating  thereto,  even  though  he  may  have  made  a 
written  return  by  afifidavit,  and  if  due  service  is  proved  by  such 
evidence,  that  is  sufficient  to  give  jurisdiction.  Robinson  v.  Mc- 
Manus,  4  Lans.  380.  The  certificate  of  the  constable  showing 
due  service  on  the  defendant  personally,  by  showing  the  original 
and  delivering  a  copy  thereof  to  him,  is  due  proof  of  the  service 
thereof.  People  v.  Lamb,  10  Hun,  348.  If  the  return  is  defect- 
ive, it  may  be  amended  at  any  time  before  judgment,  and  the 
power  of  amendment  does  not  depend  upon  the  appearance  of 
defendant  in  the  proceeding.  The  return  to  a  precept  in  sum- 
mary proceedings  cannot  be  shown  to  be  false  in  another  action, 
for  the  purpose  of  defeating  an  action  and  rendering  parties  en- 
forcing it  trespassers.  Feickert  v.  Frcisen,  i  City  Ct.  369.  An 
afifidavit  that  a  summons  was  served  "  by  afifixing,  and  leaving  so 
afifixed,  a  true  copy  of  the  summons  upon  a  conspicuous  part  of 
the  premises,  there  being  no  person  residing  on  or  employed  on 
said  premises,"  is  not  sufficient,  as  it  does  not  show  that  de- 
fendant had  no  residence  in  the  city,  or  if  he  had  one,  that  no 
person  of  suitable  age  or  discretion  upon  whom  service  might  be 
made  could  be  found  there.  Beach  v.  Bainbridge,  7  Hun,  81. 
An  affidavit  in  proceedings  against  one  of  service  upon  another 
named  "  residing  on  the  premises,"  the  first  person  being  absent, 
is  insufficient.  Cameron  v.  McDonald,  i  Hill,  512.  An  affidavit 
of  service  which  does  not  show  that  the  copy  was  left  with  a 
person  of  mature  age  at  the  last  or  usual  place  of  residence  of 
the  defendant,  is  defective.  Peoplf  v.  Matthews,  43  Barb.  168, 
affirmed,  38  N.  Y.  451.  An  affidavit  which  alleges  service  on  an 
under-tenant  on  the  demised  premises,  and  that  the  tenant  was 
absent  from  his  last  and  usual  residence,  without  stating  that 
such  residence  is  on  the  demised  premises,  gives  no  jurisdiction. 
People  V.  Piatt,  43  Barb.  116.  A  failure  to  appear  admits  the 
landlord's  right,  and  precludes  an  objection  on  certiorari  to  the 
regularity  of  the  proceedings.  As  to  waiver  by  appearance,  and 
other  decisions  as  to  service,  see  §  2240. 

The  petitioner  must  show  method  of  service  of  the  notice. 
A  mere  statement  that  the  petitioner  served,  or  had  served  the 


542    PROCEEDINGS   TO    RECOVER   THE    POSSESSION    OF   LAND. 
Art.  6.     Precept,  and  how  Served. 


notice,  is  not  sufficient.  Tolvian  v.  Heading,  1 1  App.  Div.  264, 
42  Supp.  217,  76  St.  Rep.  217.  When  summary  proceedings  are 
commenced  by  service  on  one  member  of  a  firm  of  under-tenants, 
the  other  being  absent  from  the  city  or  confined  by  ilhiess,  such 
service  is  sufficient  to  give  jurisdiction.  Liuhuig  v.  Lazarus,  10 
App.  Div,  62,  41  Supp.  773,  75  St.  Rep.  1169.  Affidavit  of 
service  of  precept  by  deHvering  to  the  tenant  should  state  that  a 
copy  of  §  1224  was  indorsed  thereon.  Rathbun  v.  Wcbcr,  13 
Civ.  Pro.  50. 

An  appearance  by  attorney  in  summary  proceedings  constitutes 
a  waiver  of  irregularity  of  service  of  process.  Cochrane  v.  Reich, 
20  Misc.  593,  46  Supp.  441. 

Precedent  for  Proof  of  Personal  Service. 

Ulster  County,  s5.  : 

John  Glennon,  of  the  city  of  Kii^gston,  said  county,  being  duly 
sworn,  says  that  he  did,  on  the  24th  day  of  December,  1886,  at  ten 
o'clock  in  the  forenoon,  at  No.  76  Crown  Street,  in  the  said  city, 
serve  the  within  precept  on  Norman  Garrison,  the  tenant  therein 
named,  by  delivering  to  him  personally  a  true  copy  thereof,  and  at 
the  same  time  showing  him  the  original,  and  that  deponent  is 
twenty-one  years  of  age  and  upwards. 

i^Jiirat.)  (Signature.) 

Precedent  for  Proof  of  Service  on  Person  of  Mature  Age. 

Ulster  County,  ss.  : 

John  Glennon,  of  the  city  of  Kingston,  said  county,  being  duly 
sworn,  says  that  he  did,  on  the  13th  day  of  August,  1886,  at  1 1  o'clock 
and  45  minutes  in  the  forenoon,  serve  the  within  precept  on  Henry 
Briggs,  the  tenant  therein  named,  by  leaving  a  true  copy  thereof  at 
his  dwelling-house,  No.  137  James  Street,  in  the  said  city,  with 
George  Simpson,  who  is  a  person  of  suitable  age  and  discretion, 
who,  at  the  time  of  the  said  service,  was  on,  and  who  resides  on  the 
said  premises,  at  the  same  time  showing  him  the  original  ;  and  that 
the  said  Henry  Briggs,  tenant,  was,  at  the  time  of  such  service, 
absent  from  his  said  dwelling-house  and  residence,  and  that  a  copy 
of  §  2241  of  the  Code  of  Civil  Procedure  was  indorsed  on  the  copy 
precept  so  served. 

{Jurat. )  (Signature. ) 

Precedent  for  Proof  of  Service  in  Conspicuous  Place. 

Ulster  County,  ss.  : 

Charles  Link,  of  the  city  of  Kingston,  said  county,  being  duly 
sworn,  says  that  he  did,  on  the  4th  day  of  April,  1887,  at  four  o'clock 
in  the  afternoon,  serve  the  within  precept  on  Mary  Bannon,  tenant 


PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND.    545 

Art.   7.     Answers  and  Defences. 

therein  named,  by  affixing  the  same  on  a  conspicuous  part  of  the 
premises  within  described,  to  wit  (here  describe  property  and  place 
of  affixing  notice),  and  that  the  said  Mary  Bannon  was  absent  from 
said  premises  at  the  time  of  said  services,  and  that  said  premises  are 
her  dwelling-house  and  place  of  residence,  and  that  there  was  no 
person  residing  or  employed  on  said  premises  at  the  time  of  said 
services,  and  that  a  copy  of  §  2241  of  the  Code  of  Civil  Procedure 
was  indorsed  on  said  copy  precept. 

{Jural.)  (Signature.) 

ARTICLE  VII. 

Answers  and  Defences.    §§  2244,  2245. 

§  2244.     [Am'd,  1893.]     Answer. 

At  the  time  when  the  precept  is  returnable  without  waiting  as  prescribed  in  an  action 
before  a  justice  of  the  peace,  or  in  a  district  court  in  the  city  of  New  York,  the  person 
to  whom  it  is  directed  or  his  landlord,  or  any  person  in  possession  or  claiming  posses- 
sion of  the  premises,  or  a  part  thereof,  may  file  with  the  judge  or  justice  who  issued 
the  precept,  or  with  the  clerk  of  the  court,  a  written  answer,  verified  in  like  manner 
as  a  verified  answer  in  an  action  in  the  Supreme  Court,  denying  generally  the  allega- 
tions, or  specifically  any  material  allegation  of  the  petition,  or  setting  forth  a  statement 
of  any  new  matter  constituting  a  legal  or  equitable  defence,  or  counterclaim.  Such 
defence  or  counterclaim  may  be  set  up  and  established  in  like  manner  as  though  the 
claim  for  rent  in  such  proceeding  was  the  subject  of  an  action. 

L.  1893,  ^^-  7°5- 

^  2245.  Issues  upon  forcible  entry  or  detainer. 

Where  the  application  is  founded  upon  an  allegation  of  forcible  entry  or  forcible 
holding  out,  the  petitioner  must  allege  and  prove  that  he  was  peaceably  in  actual 
possession  of  the  property,  at  the  time  of  a  forcible  entry,  or  in  constructive  posses- 
sion, at  the  time  of  a  forcible  holding  out ;  and  the  adverse  party  must  either  deny  the 
forcible  entry,  or  the  forcible  holding  out,  or  allege,  in  his  defence,  that  he,  or  his  an- 
cestor, or  those  whose  interest  he  claims,  had  been  in  quiet  possession  of  the  property, 
for  three  years  together  next  before  the  alleged  forcible  entry  or  detainer ;  and  that 
his  interest  is  not  ended  or  determined,  at  the  time  of  the  trial. 

Id.  §§  6  and  11,  am'd. 

As  to  whether  the  legislature  intended  by  the  enactment  of  § 
2235  to  require  proof  of  the  matters  so  required  to  be  alleged  in 
addition  to  those  specified  in  §  2245,  query.  Potter  v.  N.  Y. 
Baptist  Mission  Soc,  23  Misc.  673. 

The  denial  in  the  defendant's  affidavit  should  be  expressed 
and  positive,  and  not  circumstantial  and  argumentative.  Nibla 
V.  Post" s  Administrators,  25  Wend.  284.  But  it  is  sufficient  if  in 
general  terms  it  denies  each  and  every  allegation  contained  in 
the  affidavit  of  the  landlord.  People  v.  Coles,  42  Barb.  96.  Where 
two  tenants  hold  under  a  joint  demise  to  both,  the  affidavit  of 
one  of  them,  that  the  rent  has  not  been  demanded  of  him,  does 


544   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 

Art.  7.     Answers  and  Defences. 

not  raise  an  issue  demanding  a  jury.  Gcislcr  v.  Acosta,  9  N.  Y. 
227.  The  allegations  in  the  landlord's  affidavit,  not  denied,  will 
be  deemed  true.  People  v.  Teed,  48  Barb.  424 ;  McGuire  v. 
Ulrich,  2  Abb.  28.  An  affidavit  which  attempts  to  show  a 
former  adjudication  must  show  what  issue  was  joined,  and  on 
what  ground  judgment  was  given.  Geislcr  v.  Acosta,  9  N.  Y. 
227.  The  tenant  must  put  in  a  verified  answer  ;  as  the  Code 
now  stands  a  counter-affidavit  cannot  be  accepted  as  a  valid  plea. 
Yuelin  v.  Meade,  i  McCarty's  Civ.  Pro.  446.  Judgment  by  de- 
fault may  be  entered  at  the  return  of  the  summons  ;  the  justice 
is  not  obliged  to  wait  an  hour  as  in  civil  actions.  Mordant  v. 
MileSy  I  Abb.  N.  C.  300.  The  tenant  is  estopped  from  disputing 
his  landlord's  title  when  the  conventional  relation  exists.  People 
v.  Kelsey,  38  Barb.  269  ;  Spraker  v.  Cook,  16  N.  Y.  567.  But  he 
may  show  that  such  title  has  terminated,  either  by  its  own  limi- 
tation, or  by  conveyance,  or  by  operation  of  law.  Jackson  v. 
Davis,  5  Cow.  123;  Buck  v.  Binninger,  3  Barb.  391  ;  Capex  v. 
Parker,  3  Sandf.  662  ;  Despard  v.  Walbridge,  15  N.  Y.  374.  On 
sale  under  execution,  if  judgment  and  execution  are  regular  on 
their  face,  it  is  sufficient.  Brozvii  v.  Betts,  13  Wend.  29.  Nor, 
under  the  same  case,  can  a  tenant  show  a  breach  of  landlord's 
agreement  to  construct  premises  in  a  proper  manner.  Where  a 
landlord  is  bound  by  covenants  for  quiet  enjoyment,  which  would 
be  violated  by  dispossessing  the  tenant,  this  constitutes  a  de- 
fence. Buck  V.  Binninger,  3  Barb.  391.  The  under-tenant  has  a 
right  to  deny  the  non-payment  of  rent  by  the  tenant,  and  to 
controvert  the  allegations  of  the  landlord,  and  to  a  trial  of  the 
issues  so  raised.  People  v.  CaltaJian,  8  Week.  Dig.  297.  The 
rule  that  a  tenant  cannot  dispute  the  title  of  his  landlord  does 
not  apply  to  a  case  where  a  person  in  possession  denies  the 
facts  on  which  the  precept  is  issued.  He  may  show  that  the 
alleged  lease  was  executed  under  and  in  pursuance  of  a  usurious 
agreement  and  is  void,  so  that  the  relation  of  landlord  and  tenant 
does  not  exist.  People  v.  Hoivlett,  76  N.  Y.  574.  Fraud  in  ob- 
taining an  alleged  lease  is  not  an  issue  to  be  tried  in  summary 
proceedings.  Becker  v.  Church,  5  State  Rep.  97  ;  s.  C.  42  Hun, 
258.  The  discontinuance,  on  the  landlord's  motion,  of  summary 
proceedings  on  the  trial  of  an  issue  as  to  tenancy  is  not  an  ad- 
judication which  bars  a  subsequent  action  for  rent.  Gillilan  v. 
Spratt,  41    How.  27.     As  to  how  far  sickness  in  the  family  of  the 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF    LAND.    545 


Art.   7.     Answers  and  Defences. 


tenant  will  be  a  defence  to  proceedings,  see  Tuomy  v.  Dwm,  42 
N.  Y.  Super.  291.  It  is  not  competent  for  the  tenant  in  these 
proceedings  to  show  a  breach  of  the  landlord's  agreement  to 
construct  the  premises  in  a  proper  manner.  People  v.  Kelsey,  14 
Abb.  372.  A  counterclaim  cannot  be  pleaded  in  these  proceed- 
ings.    People  V.   Walton,  2  T.  &  C.  533. 

In  summary  proceedings  by  one  claiming  as  landlord,  the 
tenant  not  contesting  the  tenancy  and  the  amount  due,  is  not 
confined  to  a  mere  denial,  he  may  set  up  matters  which  had  been 
proved  before  a  justice  of  the  peace  and  the  judgment,  and  may 
show  that  he  occupied  as  equitable  owner  under  an  agreement 
with  plaintift'.  Provost  v.  Donohue,  21  St.  Rep.  897,  3  Supp.  399. 
Counterclaim  cannot  be  pleaded  in  summary  proceedings  of  the 
failure  to  perform  a  covenant  to  repair,  or  alter  or  enlarge  the 
demised  premises,  but  under  a  general  denial  defendant  may 
claim  benefit  of  the  clause  of  lease  that  provides  for  the  appor- 
tionment of  the  rent  after  the  time  that  tenant  is  deprived  of 
the  enjoyment  of  part  of  the  premises  in  consequence  of  alter- 
ations and  repairs  by  the  landlord,  but  where  such  offset  still 
leaves  a  balance  due  the  landlord  he  is  entitled  to  judgment  for 
possession.  Durant  Land  Co.  v.  East  River  El.  L.  Co.,  6  Supp. 
659,  17  Civ.  Pro.  224. 

Where  a  lease  contains  a  covenant  to  the  effect  that  on  giving 
a  specified  notice  the  lease  shall  continue  in  force  for  an  addi- 
tional term,  the  giving  of  the  notice  by  the  lessee  creates  the  new 
term  without  the  execution  of  a  lease  by  the  lessor,  and  will 
constitute  a  defence  in  any  court  to  a  proceeding  instituted  to 
dispossess  the  lessee  during  such  new  term.  Haiisaiier  v.  Dahl- 
inan,  72  Hun  607,  55  St.  Rep.  139,  25  Supp.  277.  The  defence 
of  eviction  is  available  in  summary  proceedings.  Ha}nilton  v. 
Graybill,  19  Misc.  521,  43  Supp.  1079,  77  St.  Rep.  1079. 

A  judgment  in  summary  proceedings  declaring  petitioner  en- 
titled to  possession  is  an  adjudication  that  the  relation  of  land- 
lord and  tenant  exists,  and  will  bar  a  subsequent  action  to  avoid 
the  lease  on  the  ground  that  it  was  a  mortgage.  Reich  v. 
CrW/r-^/;,  74  Hun  551,  afifirmed,  151  N.Y.  122.  It  is  no  defence  by 
the  assignee  of  a  lease  that  the  tenant  has  paid  all  the  rent  due 
from  the  time  of  becoming  tenant  where  there  are  arrearages  of 
rent  at  the  time  he  took  the  premises  upon  which  the  landlord 
applies  his  payments.  Collander  v.  Smith,  20  Misc.  612,  45 
35 


546   PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 

Art.   7.     Answers  and  Defences. 

Supp.  II 30,  26  Civ.  Pro.  318  ;  79  St.  Rep.  1130.  An  answer  in 
summary  proceedings  against  the  assignee  of  a  lease  denying 
that  he  failed  to  pay  "  all  rents  becoming  due  from  him  to  the 
petitioner"  is  neither  a  general  nor  a  specific  denial.  Col- 
lander  V,  Smith,  supra.  The  only  answer  authorized  by  statute 
is  one  denying  the  allegations  of  the  petitioner.  Anything  else 
is  surplusage  and  may  be  disregarded.  Bloom  v.  Hayek,  71  Hun, 
252,  54  St.  Rep.  477,  25  Supp.  7.  Damages  to  a  tenant  resulting 
from  conversion  of  his  chattels  by  the  landlord  are  a  proper  sub- 
ject of  counterclaim  in  summary  proceedings  for  non-payment 
of  rent.  Biirrellv.  Do  Sin,  10  Misc.  745,  31  Supp.  804,  24  Civ. 
Pro.  243,  64  St.  Rep.  612.  An  answer  which  makes  a  general 
denial  and  alleges  that  a  new  lease  was  made  and  that  the  rent 
has  been  paid  under  the  new  lease  raises  an  issue.  Matter  of 
Wright,  42  St.  Rep.  455,  16  Supp.  808.  Plea  of  tender  after  the 
commencement  of  an  action  is  not  permissible.  Stover  v. 
Chasse,  9  Misc.  45,  59  St.  Rep.  671,  29  Supp.  291.  It  is  no  de- 
fence to  a  proceeding  for  the  non-payment  of  rent  that  the  full 
amount  thereof  is  not  due,  nor  can  a  tenant  plead  a  counter- 
claim in  answer  to  the  proceedings.  Barnum  v.  Fitzpatriek,  42 
St.  Rep.  179,  16  Supp.  934. 

A  tenant  can  only  make  a  general  or  a  specific  denial  of  the 
petition.  Durant  v.  East  River  El.  L.  Co.,  2^  St.  Rep.  928,  15 
Daly  337,  17  Civ.  Pro.  224,  6  Supp.  659.  Damages  to  a  tenant's 
stock  in  trade  caused  by  the  landlord's  failure  to  properly  repair 
the  premises  in  conformity  with  the  provisions  of  the  lease  cannot 
be  made  the  subject  of  counterclaim  in  an  action  for  non-pay- 
ment of  rent.  Pearson  v.  Germond,  83  Hun,  88,  63  St.  Rep.  842, 
31  Supp.  358.  A  person  residing  on  the  premises  on  whom  the 
precept  is  served,  or  any  person  in  possession,  may  serve  a 
verified  answer,  although  she  is  the  tenant's  wife,  left  in  posses- 
sion during  his  absence.  Matter  of  Wright,  16  Supp.  808,42  St. 
Rep.  455.  In  summary  proceedings  an  answer  denying  any  rent 
due,  or  that  demand  therefor  had  been  made,  verified  by  the 
defendant  in  the  following  words:  "  J.  F.,  sworn,  says  that  he  is 
the  defendant  herein  and  that  he  knows  the  foregoing  answer 
to  be  true,"  Jield,  insufficient,  there  being  nothing  to  indicate 
that  the  party  intended  to  swear  that  the  answer  was  true  to  his 
own  knowledge.  Cherry  v.  Foley,  42  St.  Rep.  188,  16  Supp.  853. 
The  only  answer  that  can  be  made  is  a  general  denial,  or  a  denial 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    547 


Art.  8.     Trial  and  Miscellaneous  Provisions. 


of  a  specific  allegation  in  the  petition,  and  if  any  portion  of  rent  i.s 
due  the  landlord  is  entitled  to  a  final  order  in  his  favor.  Bar- 
man  v.  Fitzpatrick,  42  St.  Rep.  179,  16  Supp.  934,  27  Abb.  N.  C. 
334.  An  eviction  is  a  defence  to  summary  proceedings  for  non- 
payment of  rent.  Wetter  v.  Soubrious,  22  Misc.  739,  49  Supp. 
1043,  83  St.  Rep.  1043.  The  provisions  of  the  Code  as  to  ouster 
of  jurisdiction  by  plea  of  title  in  a  justice's  court  do  not  apply  to 
summary  proceeding!?.  Wetter  v.  Soubrious,  22  Misc.  739,  49 
Supp.  1043,  83  St.  Rep.  1043.  An  answer  in  summary  proceedings 
which  denies  all  the  allegations  of  the  petition  except  possession, 
raises  an  issue  as  to  the  relation  of  landlord  and  tenant  and  the 
indebtedness  of  rent ;  and  the  petitioner  is  not  relieved  from  the 
burden  of  proving  them  by  a  subsequent  separate  defence  which 
admits  that  he  is  the  owner,  but  claims  the  lessor  to  whom  the 
rent  is  paid  is  a  third  person  who  is  not  a  party  to  the  proceed- 
ing. Fox  w.HeU,  24  Misc.  184,  52  Supp.  724,  86  St.  Rep.  724. 
While  a  tenant  may  ordinarily  show  that  the  title  of  the  landlord 
has  been  defeated  by  some  event  happening  after  the  making  of 
the  lease,  he  is  estopped  from  so  doing  by  a  judgment  recovered 
by  the  landlord  since  that  event  in  summary  proceedings  in 
which  the  same  facts  were  set  forth  as  a  defence,  but  upon  a 
somewhat  different  theory,  as  such  former  adjudication  conclu- 
sively established  the  continuance  of  the  relation  of  landlord  and 
tenant  after  such  event.  Mulligan  v.  Cox,  23  Misc.  695,  52  Supp. 
Ill,  86  St.  Rep.  III. 

ARTICLE    VIII. 

Trial  and  Miscellaneous  Provisions.     §§  2246,  2247,  2248. 

§  2246.  In  N.  Y.  District  Court,  cause  may  be  transferred  to 
another  court  for  trial. 

In  a  District  Court  of  the  city  of  New  York,  at  the  time  of  joining  issue,  the 
justice  sitting  in  the  cause  may,  in  his  discretion,  upon  motion  of  either  party,  or,  if 
no  justice  is  present,  the  clerk  may,  by  consent  of  both  parties,  make  an  order  trans- 
ferring the  cause  for  trial,  to  a  District  Court  of  an  adjoining  district,which  thereupon 
has  the  same  jurisdiction  and  power  at  its  own  court-house,  as  if  the  property  was 
situate  within  its  district. 

L.  1877,  ch.  187,  §  2,  am'd. 

§  2247.     [Am'd  1881  and  1882.]     TriaL 

The  issues  joined  by  the  petition  and  answer  must  be  tried  by  the  judge  or  justice, 
unless  either  party  to  such  proceedings  shall,  at  the  time  designated  in  such  precept 
for  showing  cause,  demand  a  jury  and  at  the  time  of  such  demand  pay  to  such  judge 


548    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  8.     Trial  and  Miscellaneous  Provisions. 


or  justice  the  necessary  costs  and  expenses  of  obtaining  such  jury.  If  a  jury  be 
demanded  and  such  costs  and  expenses  be  paid,  the  judge  or  justice  with  whom 
such  petitition  shall  be  filed  shall  nommate  twelve  reputable  persons  qualified  to  serve 
as  jurors  in  courts  of  record,  and  shall  issue  his  precept  directed  to  the  sheriff  or  one 
of  the  constables  cf  the  county,  or  any  constable  or  marshal  of  the  city  or  town,  com. 
manding  him  to  summon  the  persons  so  nominated  to  appear  before  such  judge  or 
justice  at  such  time  or  place  as  he  shall  therein  appoint,  not  more  than  three  days 
from  the  date  thereof,  for  the  purpose  of  trying  the  said  matters  m  difference.  Six 
of  the  persons  so  summoned  shall  be  drawn  in  like  manner  as  jurors  in  justices' 
courts,  and  shall  be  sworn  by  such  judge  or  justice  well  and  truly  to  hear,  try,  and 
determine  the  matters  in  difference  between  the  parties.  After  hearing  the  allega- 
tions and  proofs  of  the  parties,  the  said  jury  shall  be  kept  together  until  they  agree  on 
their  verdict,  by  the  sheriff  or  one  of  his  deputies,  or  a  constable,  or  by  some  proper 
person  appointed  by  the  judge  or  justice  for  that  purpose,  who  shall  be  sworn  to  keep 
such  jury  as  is  usual  in  like  cases  of  courts  of  record.  If  such  jury  cannot  agree  after 
being  kept  together  for  such  time  as  such  judge  or  justice  shall  deem  reasonable,  he  may 
discharge  them  and  nominate  a  new  jury,  and  issue  a  new  precept  in  manner  aforesaid. 
R.  S.  §  34. 

§  2248.    Adjournment. 

At  the  time  when  issue  is  joined,  the  judge  or  justice  may,  in  his  discretion,  at  the 
request  of  either  party,  and  upon  proof  to  his  satisfaction,  by  affidavit  or  orally,  that 
an  adjournment  is  necessary  to  enable  the  applicant  to  procure  his  necessary  witnesses, 
or  by  consent  of  all  the  parties  who  appear,  adjourn  the  trial  of  the  issue,  but  not  more 
than  ten  days  ;  except  by  consent  of  all  parties. 
R.  S.  §  41- 

Where  an  answer  denied  indebtedness  for  rent,  alleging  pay- 
ment in  full,  and  asked  that  the  proceedings  be  dismissed  with 
costs,  and  an  application  for  a  jury  trial  was  denied,  and  judgment 
was  rendered  for  the  petitioner  ;  held,  error.  Bloom  v.  Hiiyck^'ji 
Hun,  252,  54  St.  Rep.  477,  25  Supp.  7.  The  dismissal  of  a  precept 
of  a  District  Court  on  the  grounds  that  by  reason  of  the  purchase 
of  a  mortgage  on  the  premises,  the  tenant  became  mortgagee  in 
possession  and  not  liable  for  rent,  is  error.  Constant  v.  Barrett, 
13  Misc.  249,  34  Supp.  163,  68  St.  Rep.  210.  As  to  what  is  suf- 
ficient to  justify  a  dismissal  of  the  precept  where  the  petitioner 
proves  facts  alleged  showing  "  constructive  possession  "  as  used  in 
§  2245  of  the  Code,  s&eLowmanv.  Spraguc,  73  Hun, 408,  26  Supp. 
568,  58  St.  Rep.  87.  As  to  what  cures  error  in  drawing  jury  in  the 
first  instance,  see  Blooniingdale  v.  Adler,  7  Misc.  182,  27  Supp.  321, 
57  St.  Rep.  524.  Clerk  of  the  District  Court  has  power  on  the 
return  of  the  precept,  when  no  justice  is  present,  to  adjourn  the 
matter  to  a  subsequent  date  on  which  the  justice  may  receive 
the  answer  and  proceed  to  trial.  Deutermann  v.  Nilson,  15  Civ. 
Pro.  411,  20  St.  Rep.  loi,  3  Supp.  113.  In  a  case  where,  by 
demand  of  one  of  the  parties,   a  trial    is  had    before   a   jury,  the 


PROCEEDINGS  TO   RECOVER   THE   POSSESSION    OF   LAND.    549 

Art.  8.     Trial  and  Miscellaneous  Provisions. 

justice  has  no  power  to  direct  the  verdict.  Horn  v.  Prio?-,  22  St. 
Rep.  237;  George  w.  Trevellyn,  12  Misc.  153,  33  Supp.  16,  66  St. 
Rep.  516. 

In  Beadle  \.  Monroe,  68  Hun,  323,  52  St.  Rep.  182,  22  Supp. 
981,  it  was  held  error  to  permit  tenant  to  testify  that  he  did  not 
owe  the  rent  claimed,  that  such  evidence  was  incompetent  and 
improper.  In  proceedings  brought  on  the  ground  that  the 
premises  were  being  used  as  a  bawdy-house,  evidence  as  to  their 
use  in  the  past  by  the  same  tenant  was  held  admissible.  Goelct 
V.  Lazvlor,  16  Misc.  59,  37  Supp.  691,  73  St.  Rep.  132.  Where 
the  landlord  proves  the  lease  the  burden  of  proving  payment  is 
on  the  tenant.  Collender  v.  Smith,  20  Misc.  612,  45  Supp.  1130, 
26  Civ.  Pro.  318,  79  St.  Rep.  11 30.  On  the  issue  as  to  whether 
the  holding  was  by  the  year  or  by  the  month,  evidence  as  to  the 
terms  of  other  tenants  is  not  admissible.  Schneider  v.  Hill,  19 
Misc.  56,  42  Supp.  879,  76  St.  Rep.  879.  On  the  issue  as  to  the 
duration  of  a  term  of  letting,  proof  of  a  conversation  between 
landlord's  agent  and  others,  in  the  absence  of  defendant,  to  the 
effect  that  his  authority  was  limited  to  the  renting  by  the  month 
of  the  premises  is  not  admissible.  Babin  v.  Ensley,  14  App.  Div. 
548,  TJ  St.  Rep.  849,  43  Supp.  849.  On  the  issue  as  to  whether 
the  letting  was  for  a  month  or  for  an  indefinite  term,  evidence 
that  the  landlord  required  the  tenant  to  make  repairs  directed 
by  the  board  of  health,  and  to  pay  water  rates,  is  incompetent. 
Cohen  V.  Green,  21  Misc.  334,  47  Supp.  136.  Upon  the  extent  of 
the  relation  of  landlord  and  tenant,  evidence  tending  to  show 
that  the  deed  given  by  the  defendant  to  the  plaintiff  was  in  fact 
a  mortgage,  and  that  certain  payments  were  made  on  the  indebt- 
edness, is  admissible.  Qiieen  City  Bank  v.  Hood,  15  Misc.  237, 
36  Supp.  981,  72  St.  Rep.  426.  Where  a  tenant  denies  allega- 
tions in  the  petition  that  the  rent  is  due,  he  may  prove  payment 
of  the  rent.  It  is  not  defence  that  all  of  the  rent  is  not  due, 
or  that  the  landlord  has  demanded  too  much.  Dnrant  Land 
Imp.  Co.  V.  East  River  Elec.  Light  Co.,  15  Daly  337,  25  St.  Rep. 
928,  6  Supp.  659,  17  Civ.  Pro.  224.  In  proceedings  against  a 
tenant  claiming  to  hold  over,  a  receipt  for  rent  given  by  a  person 
from  the  landlord  subsequent  to  notice  to  quit  is  not  admissible, 
unless  it  is  shown  that  the  landlord  authorized  receiving  it. 
Schnieder  v.  Hill,  19  Misc.  56,  42  Supp.  879,  ^d  St.  Rep.  879. 
Payment  of  rent  due  by  a  tenant  during  a  stay  granted  to  enable 


550   PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 
Art.  8.     Trial  and  Miscellaneous  Provisions. 


him  to  do  so  operates  as  a  discontinuance  of  summary  proceed- 
ings. The  issuance  of  a  warrant  of  dispossession  thereafter  is 
not  authorized  and  does  not  terminate  the  lease.  Ncwcombe  v. 
Eagleton,  19  Misc.  603,  44  Supp.  401,  78  St.  Rep.  401.  Where 
the  petition  and  precept  conform  to  the  statute  and  proper 
service  has  been  made  on  the  tenant,  who  fails  to  answer,  the 
District  Court  has  no  authority  to  refuse  judgment  and  a  warrant 
of  dispossession,  and  no  authority  to  continue  the  proceedings 
at  a  future  date  on  his  own  motion.  People  ex  rel.  Allen  v. 
Murray,  2  Misc.  152,  23  Civ.  Pro.  71,  21  Supp.  797.  Summary 
proceedings  are  not  "actions"  within  §§  2951-52  of  the  Code, 
and  a  justice  is  not  ousted  of  jurisdiction  by  the  filing  of  the 
answer  setting  up  claim  of  title  to  land  and  tender  of  an  under- 
taking. People  ex  rel.  Baldwin  v.  Goldfogle,  62  St.  Rep.  70,  23 
Civ.  Pro.  417. 

In  a  proceeding  to  remove  a  person  from  a  portion  of  a  pier 
described  in  the  complaint  by  metes  and  bounds,  if  the  agree- 
ment proved  at  the  trial  does  not  amount  to  a  lease  of  the  prem- 
ises described,  the  variance  is  fatal.  People  v.  Cushnian,  i  Hun, 
73.  Where  the  facts  put  in  issue  are  the  ownership  of  the  prem- 
ises, and  the  hiring  thereof  to  the  tenant,  proof  of  a  convey- 
ance to  the  landlord  and  payment  to  him  of  rent  by  the  tenant, 
establishes  both  these  issues  against  the  tenant.  People  v.  Teed, 
48  Barb.  424.  Where  plaintiff  has  given  evidence  tending  to 
show  defendant  went  into  possession  with  his  permission  and 
under  an  agreement  to  vacate  when  requested,  defendant  deny- 
ing such  agreement  and  claiming  that  she  entered  in  right  of  her 
children,  and  that  plaintiff  had  given  her  the  premises  in  con- 
sideration of  services,  the  defendant  should  be  allowed  to  in- 
troduce evidence  to  sustain  such  defence.  People  v.  Lockwood, 
3  Hun,  304.  The  lessee  may  show  that  the  instruments  which 
purport  to  create  the  relation  of  landlord  and  tenant  between 
the  parties  constitute  in  fact  a  mortgage  to  secure  the  repayment 
of  a  loan,  and  that  such  mortgage  was  void  for  usury.  It  will  be 
presumed  the  offer  will  be  proved  by  competent  evidence.  People 
v.  Howlett,  13  Hun,  138,  ^6  N.  Y.  574.  Proof,  to  the  effect  that 
the  instrument  relied  on  to  show  the  tenancy  as  a  basis  for  a 
summary  proceeding,  is  void  for  fraud  in  its  procurement,  and  is 
not  admissible  or  competent  matter  of  defence.  Becker  v.  ChnrcJi, 
42  Hun,  258,  citing  People  v.  Hozolett,  ^6  N.  Y.  574.     The  taking 


PROCEEDINGS   TO   RECOVER   THE   POSSESSION   OF   LAND.    55 1 

Art.  8.     Trial  and  Miscellaneous  Provisions. 

of  a  chattel  mortgage  to  secure  the  payment  of  overdue  rent  at 
a  future  day,  and  also  to  secure  subsequently  accruing  rent,  is 
not  a  bar  to  summary  proceedings  in  case  of  non-payment  of  such 
subsequent  instalments  of  rent.  Proof  of  service  of  notice  to 
quit,  when  denied  by  answer,  should  not  be  made  by  affidavit, 
but  by  competent  proof.      People  v.  Walsh,  13  Weekly  Dig.  440. 

Justices  of  the  District  Courts  have  no  power  under  the  Con- 
solidation Act  to  open  defaults  in  summary  proceedings.  Coch- 
rane V.  Reich,  20  Misc.  593,  46  Supp.  441.  A  final  order  in 
summary  proceedings  entered  by  default  will  not  be  vacated  on 
affidavits  merely  stating  that  the  defendant's  attorney  reached 
court  one-half  hour  late,  and  that  the  defendant  is  not  indebted 
to  the  landlord,  where  it  does  not  appear  that  any  injustice  has 
been  done,  under  §  3064  of  the  Code.  Mullane  v.  Roberge,  21 
Misc.  342,  47  Supp.  155.  Where  default  is  made  upon  return  of 
the  precept  the  landlord  is  entitled  to  his  writ  without  further 
order.  Peer  v.  O'Leary,  8  Misc.  350,  59  St.  Rep.  424,  28  Supp. 
687. 

An  adjournment,  except  at  the  request  of  a  party  to  procure 
his  witnesses,  it  is  said,  operates  as  a  discontinuance  ;  so  held 
under  language  of  Revised  Statutes,  in  Boiler  v.  Mayor,  40  N.  Y. 
Super.  523.  But  contra,  Brown  v.  Mayor,  66  N.  Y.  385.  The 
justice  loses  jurisdiction  by  an  indefinite  adjournment,  and  the 
execution  of  his  warrant  may  be  stayed  by  injunction.  Kiernan 
v.  Reining,  2  How.  (N.  S.)  89.  It  seems  there  is  no  provision  of  the 
statute  authorizing  an  adjournment  after  the  trial,  and  an  indefi- 
nite adjournment  or  postponement  for  deliberation  and  decision 
ousts  the  justice  of  jurisdiction.  Gillilan  v.  Spratt,  41  How.  27. 
But  see  People  v.  Kelly,  20  Hun,  549,  which  holds  that  the  justice 
does  not  lose  jurisdiction  where  adjournment  is  by  consent,  and 
that  the  mere  taking  of  time  after  the  trial  to  consider  the  ques- 
tions raised  is  not  in  the  nature  of  an  adjournment.  The  justice 
is  entitled  to  four  days  in  which  to  render  his  decision.  People  v. 
Loomis,  27  Hun,  328.  Where  the  under-tenant  only  appeared  on 
the  return  day,  and  the  matter  was  then  adjourned  by  consent, 
and  on  the  adjourned  day  judgment  was  rendered  for  the  land- 
lord, it  was  held  that  there  was  no  error.  People  v.  Mayor,  66  N. 
Y.  385.  In  summary  proceedings  before  a  court  of  limited  juris- 
diction, evidence  is  not  admissible  on  behalf  of  the  petitioner  to 
show  that  a  conveyance  by  him,  absolute  on  its  face,  was  not 


552   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.  9.     Final  Order  and  its  Effect. 


delivered  as  an  absolute  conveyance,  but  that  he  verbally  re- 
served the  use  and  benefit  of  the  premises  for  life.  Matter  of 
Hattersley  v.  Cronyn,  22  Misc.  259  ;  sub  noin.  Hattersley  v.  Cronyn, 
49  Supp.  II 1 3,  83  St.  Rep.  I II 3. 

ARTICLE    IX. 
Final  Order  and  its  Effect.    §§  2249,  2250,  2264. 

§  2249.  Pinal  order  upon  trial. 

If  sufficient  cause  is  not  shown  upon  the  return  of  the  precept ;  or  if  the  verdict  of 
the  jury,  or  the  decision  of  the  judge  or  justice,  upon  atrial  without  a  jury,  is  in  favor 
of  the  petitioner,  the  judge  or  justice  must  make  a  final  order,  awarding  to  the  peti- 
tioner the  delivery  of  the  possession  of  the  property,  except  that,  where  the  case  is 
within  §  2237  of  this  act,  the  final  order  must  direct  the  removal  of  the  occupant.  In 
either  case,  the  final  order  must  award  to  the  petitioner  the  costs  of  the  special  proceed- 
ing. If  the  verdict  or  decision  is  in  favor  of  the  person  answering,  the  judge  or  jus- 
tice must  make  a  final  order  accordingly,  and  awarding  to  him  the  costs  of  the  special 
proceeding. 

See  L.  1849,  ch.  193  (2  Edm.  533). 

§  2250.     [Am'd,  1882.]    Amount  of  costs;  how  collected. 

Costs,  when  allowed,  and  the  fees  of  officers,  except  where  a  fee  is  specially  given 
in  chapter  twenty-one  of  this  act,  must  be  at  the  rate  allowed  by  law  in  an  action  in  a 
justice's  court  [  ],  and  are  limited  in  like  manner,  unless  the  application  is  founded 
upon  an  allegation  of  forcible  entry  or  forcible  holding  out,  in  which  case  the  judge  or 
justice  may  award  to  the  successful  party  a  fixed  sum  as  costs,  not  exceeding  fifty 
dollars,  in  addition  to  his  disbursements.  If  the  final  order  is  made  by  a  county 
judge,  or  a  special  county  judge,  or  by  a  mayor  or  recorder,  an  execution  to  collect 
the  costs  may  be  issued  thereupon  as  if  it  was  a  judgment  of  a  justice  of  the  peace  of 
the  same  city  or  county;  and  for  that  purpose  the  officer  takes  the  place  of  a  justice 
of  the  peace.  In  every  other  case  [  ]  an  execution  maybe  issued  to  collect  the  costs 
awarded  thereby  [  ]  as  if  the  final  order  was  a  judgment  rendered  in  the  court  of 
which  the  judge  or  justice  is  the  presiding  officer. 

§  2264.  Application  of  this  title;  effect  of  final  order. 

This  title  does  not  impair  the  rights  of  a  landlord,  lessor,  or  tenant  in  a  case  not 
therein  provided  for.  Where  a  special  statutory  provision  confers  a  right  to  take  pro- 
ceedings in  the  manner  heretofore  prescribed  by  law  for  the  summary  removal  of  a 
person  in  possession  of  real  property,  the  proceedings  thereunder  must  be  taken  as 
prescribed  in  this  title.  A  final  order,  made  in  a  special  proceeding  taken  as  pre- 
scribed in  this  title,  is  not  a  bar  to  an  action  of  ejectment  to  recover  the  property 
affected  thereby. 

Judgment  by  default  is,  as  between  the  parties,  conclusive  as 
to  facts  alleged  as  the  basis  of  the  proceedings,  but  is  not  con- 
clusive as  to  the  amount  of  rent  nor  facts  not  in  issue.  Dickin- 
son V.  Price,  64  Hun,  149,  45  St.  Rep.  159,  18  Supp.  801.  Judg- 
ment of  a  court  of  competent  jurisdiction  in  summary  proceed- 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    553 
Art.  9.     P'inal  Order  and  its  Effect. 


ings  in  favor  of  the  petitioner  is  an  adjudication  that  the  relation 
of  landlord  and  tenant  existed  between  the  parties,  and  is  a  bar 
to  an  action  to  avoid  the  lease.  Reich  v.  Cochran,  74  Hun,  551, 
20  Misc.  623,  46  Supp.  443,  affirmed,  151  N.  Y.  122.  Equitable 
rights  of  a  tenant  cannot  be  enforced  in  such  proceeding.  Earle 
V.  McGoldrick,  36  Supp.  803,  15  Misc.  135,  71  St.  Rep.  825. 
Judgment  dispossessing  an  assignee  of  a  lease  without  objection 
on  the  return  of  the  precept  is  conclusive  in  an  action  subse- 
quently brought  by  the  landlord  against  defendant  for  rent,  and 
will  preclude  defendant  from  showing  that  at  the  time  of  said 
judgment  there  was  any  privity  of  estate  between  himself  and 
the  plaintifT  because  he  had  then  assigned  the  lease  and  vacated 
the  premises.  Grafton  v.  Brigham,  70  Hun,  131,  54  St.  Rep. 
103,  24  Supp.  54.  An  allegation  of  possession  in  a  verified  peti- 
tion is  sufficient  to  support  judgment  for  the  landlord,  where  the 
tenant  refuses  to  proceed  and  withdraws  from  the  proceedings, 
and  it  is  admitted  that  his  property  is  still  on  the  premises. 
Burrell  v.  Do  Sin,  10  Misc.  745,  31  Supp.  804,  24  Civ.  Pro.  243. 
Where  a  lease  provides  for  the  payment  of  water  rates,  and  that 
if  not  paid  the  landlord  may  enforce  payment  of  rent  reserved, 
he  is  entitled  to  a  final  order  if  rents  or  water  rates  remain  un- 
paid. Cochran  v.  Reich,  20  Misc..  623,  46  Supp.  443.  It  is  the 
duty  of  the  justice  of  a  district  court  to  which  summary  proceed- 
ings have  been  transferred  for  trial  to  make  final  order.  Wyckoff 
v.  Frommer,  12  Misc.  149,  33  Supp.  11,  66  St.  Rep.  511.  A  final 
order  dispossessing  tenants  is  not  binding  as  to  the  rent  for  a 
period  included  within  the  term  of  an  undertaking  given  to  stay, 
pending  appeal,  the  execution  of  a  warrant  for  delivery  of  the 
possession  of  the  premises  as  against  sureties  named  therein. 
Roscnqucst  V.  Noble,  21  App.  Div.  583.  Judgment  in  favor  of 
landlord  for  non-payment  of  rent  bars  an  action  by  the  tenant  to 
cancel  the  lease.  Reich  v.  Cochran,  151  N.  Y.  122,  affirming  74 
Hun,  551,  26  Supp.  443.  In  case  a  tenant  moves  out  in  compli- 
ance with  the  precept  before  return  day,  or  after  final  order,  in 
both  cases  the  lease  is  terminated  without  the  issuance  of  a  war- 
rant. Ash  V.  Purnell,  26  Abb.  N.  C.  92,  19  Civ.  Pro.  234,  16 
Daly,  189,  32  St.  Rep.  606,  11  Supp.  514.  A  judgment  in  sum- 
mary proceedings  was  set  aside  where  the  landlord,  to  obtain  it, 
promised  to  credit  the  rent  of  sub-tenants  on  the  lease.  Elver- 
son  V.  Vanderpoel,  69  N.  Y.  610.     The  order  is  to  be  made  as  re- 


554   PROCEEDINGS   TO    RECOVER   THE    POSSESSION    OF   LAND. 


Art.  9.     Final  Order  and  its  Effect. 


quired  by  statute.  Starkweather  v.  Seeley,  45  Barb.  164.  It  was 
held,  in  AVw  York  Mutual  Life ,  Insurance  Company  v.  Wa/dron, 
in  Common  Pleas,  reported  in  New  York  Daily  Reg.,  January  6, 
1881,  and  II  Week.  Dig.  245,  and  9  Daly,  472,  that  no  costs  can 
be  allowed  beyond  the  marshal's  fees  where  proceeding  is  in 
District  Court.  The  section  has  since  been  amended.  As  to  costs 
in  New  York  City,  see  Laws  of  1882,  chap.  410  (Consolidation 
Act),  §  141 8. 

Precedent  for  Final  Order. 

Before  William  S.  Kenyon,  County  Judge. 


James  Dubois 

agsf. 
Samuel  Kline. 


Precept  to  show  cause  returnable  the  24th  day  of  June,  1886,  at 
two  o'clock,  afternoon. 

The  petitioner  appears  on  the  24th  day  of  June  and  demands  the 
possession  of  the  premises  within  mentioned  for  (recite  the  cause). 

The  tenant  appears  (recite  the  facts). 

Final  order  is,  therefore,  made  the  28th  day  of  June,  1886.  in  favor 
of  the  said  petitioner,  and  I  hereby  award  to  the  petitioner  the  de- 
livery of  the  possession  of  the  premises  within  described  l)y  reason 
of  (recite  the  cause),  and  I  hereby  order  that  a  warrant  issue  to  re- 
move the  said  tenant  and  all  persons  from  said  premises,  and  to  put 
the  petitioner  into  full  possession  thereof,  and  I  award  to  the  peti- 
tioner costs  of  the  said  proceeding's. 

WILLIAM  S.   KENYON, 

County  Judge  of  Ulster  County. 

It  seems  that  a  judgment  by  default  for  non-payment  of  rent 
is  conclusive  in  the  landlord's  action  to  recover  rent  as  to  the  ex- 
istence and  validity  of  the  lease,  the  occupation  by  tlie  tenant, 
and  that  some  rent  is  due,  but  it  is  not  conclusive  as  to  the 
amount  of  rent,  though  it  is  alleged  in  the  affidavit  on  which  the 
proceedings  are  founded.  Jarvis  v.  Driggs,  69  N.  Y.  143  ; 
Broivn  v.  Mayor,  66  id.  385.  In  proceedings  to  recover  rent, 
judgment  in  summary  proceedings  and  papers  used  as  evidence 
therein  are  not  evidence  of  the  lease,  or  of  the  length  of  occu- 
pancy or  its  terms.  Evans  v.  Post,  5  Hun,  338.  Judgment  in 
summary  proceeding  is  conclusive  of  the  liability  of  tenant  for 
rent    in  a   subsequent   action   brought  to   collect  it.     Grafton  v. 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    555 

Art.   10.     Warrant  and  how  Proceedings  Stayed. 

Brighain,  70  Hun,  131,  24  Supp.  54.  A  judgment  that  the  ten- 
ancy wa.s  from  year  to  year,  and  that  the  tenants  were  not  holding 
over  after  the  expiration  of  the  term,  does  not  bar  another  suit 
brought  for  the  same  purpose  after  the  expiration  of  the  year. 
Matthews  v.  Matthczus,  49  Hun,  346,  2  Supp.  121. 


ARTICLE  X. 

Warrant  and   how  Proceedings   Stayed.     §§  2251,  2252, 
2253,  2254,  2255,  2265. 

g  2251.     [Am'd,  1882.]    Warrant  to  dispossess  defendant. 

Where  the  final  order  is  in  favor  of  the  petitoner,  the  judge  or  justice  must  there- 
upon issue  a  warrant,  under  his  hand,  directed  to  the  sheriff  of  the  county,  or  to  any 
constable  or  marshal  of  the  city  or  town,  in  which  the  property,  or  a  portion  thereof, 
is  situated,  or  if  it  is  not  situated  in  a  city,  to  any  constable  of  any  town  in  the  county, 
describing  the  property,  and  commanding  the  officer  to  remove  all  persons  therefrom, 
and  also,  except  where  the  case  is  within  §  2237  of  this  act,  to  put  the  petitioner  into 
the  full  possession  thereof. 

See  L.  1857,  ch.  6S4;  also  §§  58,  59,  63,  64,  and  L.  1868,  ch.  764  (7  Edm.  335). 

g  2252.    Execiition  of  warrant. 

The  officer,  to  whom  the  warrant  is  directed  and  delivered,  must  execute  it,  accord- 
ing to  the  command  thereof,  between  the  hours  of  sunrise  and  sunset. 
R.  S.  §  40. 

§  2253.    When  warrant  cancels  lease ;  exception. 

The  issuing  of  a  warrant  for  the  removal  of  a  tenant  from  demised  premises,  can- 
cels the  agreement  for  the  use  of  the  premises,  if  any,  under  which  the  person  removed 
held  them  ;  and  annuls  accordingly  the  relation  of  landlord  and  tenant,  except  that  it 
does  not  prevent  a  landlord  from  recovering,  by  action,  any  sum  of  money,  which  was, 
at  the  time  when  the  precept  was  issued,  payable  by  the  terms  of  the  agreement,  as 
rent  for  the  premises  ;  or  the  reasonable  value  of  the  use  and  occupation  thereof,  to 
the  time  when  the  warrant  was  issued,  for  any  period  of  time,  with  respect  to  which 
the  agreement  does  not  make  any  special  provision  for  payment  of  rent. 

Id.  §  43  ;  also,  §  60;  L.  1868,  ch.  764  (7  Edm.  336). 

g  2254.    [Am'd.  1885]    Warrant;  when  and  how  stayed. 

The  party,  against  whom  a  final  order  is  made,  requiring  the  deliver^'  of  possession 
to  the  petitioner,  may,  at  any  time  before  a  warrant  is  issued,  stay  the  issuing  thereof ; 
and  also  stay  an  execution  to  collect  the  costs,  as  follows  : 

I.  Where  the  final  order  establishes  that  a  lessee  or  tenant  holds  over,  after  a  de- 
fault in  the  payment  of  rent,  or  of  taxes,  or  assessments,  he  may  effect  a  stay,  by  pay- 
ment of  the  rent  due,  or  of  such  taxes  or  assessments,  and  interest  and  penalty,  if 
any  thereon  due,  and  the  costs  of  the  special  proceeding ;  or  by  delivering  to  the  judge 
or  justice,  or  the  clerk  of  the  court,  his  undertaking  to  the  petitioner,  in  such  sum  and 
with  such  sureties  as  the  judge  or  justice  approves,  to  the  effect  that  he  ^\•ill  pay  the 
rent,  or  such  taxes  or  assessments,  and  interest  and  penalty  and  costs,  within  ten  days. 
at  the  expiration  of  which  time  a  warrant  may  issue,  unless  he  produces  to  the  judge 
or  justice  satisfactory  evidence  of  the  payment. 


556   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 
Art.   lo.     Warrant  and  how  Proceedings  Stayed. 

2.  Where  the  final  order  establishes  that  a  lessee  or  tenant  has  taken  the  benefit  of 
an  insolvent  act,  or  has  been  adjudicated  a  bankrupt,  he  may  effect  a  stay  by  paying 
the  costs  of  the  special  proceeding,  and  by  delivering  to  the  judge  or  justice,  or  the 
clerk  of  the  court,  his  undertaking  to  the  petitioner,  in  such  a  sum  and  with  such 
sureties  as  the  judge  or  justice  approves,  to  the  effect,  that  he  will  pay  the  rent  of  the 
premises,  as  it  has  become,  or  thereafter  becomes  due. 

3.  Where  the  final  order  establishes  that  the  person  against  whom  it  is  made,  con- 
tinues in  possession  of  real  property,  which  has  been  sold  by  virtue  of  an  execution 
against  his  property,  he  may  effect  a  stay,  by  paying  the  costs  of  the  special  proceeding 
and  delivering  to  the  judge  or  justice,  or  the  clerk  of  the  court,  an  affidavit,  that  he 
claims  the  possession  of  the  property,  by  virtue  of  a  right  or  title,  acquired  after  the 
sale,  or  as  guardian  or  trustee  for  another ;  together  with  his  undertaking  to  the  peti- 
tioner, in  such  a  sum  and  with  such  sureties  as  the  judge  or  justice  approves,  to  the 
effect,  that  he  will  pay  any  costs  and  damages,  which  may  be  recovered  against  him, 
in  an  action  of  ejectment  to  recover  the  property,  brought  against  him  by  the  petitioner 
within  six  months  thereafter;  and  that  he  will  not  commit  any  waste  upon  or  injury 
to  the  property,  during  his  occupation  thereof. 

R.  S.  §  44,  am'd  by  L.  1857,  ch.  6S4,  and  §§  45  and  46. 

§  2255.    Undertaking;  how  disposed  of. 

Where  an  undertaking  is  given,  in  a  case  specified  in  subdivision  first  of  the  last 
section,  the  judge  or  justice  must  deliver  it  to  the  person  against  whom  the  final  order 
was  made,  upon  his  producing  the  evidence  of  payment,  mentioned  in  that  subdivision. 
If  he  does  not  produce  such  evidence  within  ten  days,  the  judge  or  justice  must  de- 
liver it  to  the  petitioner.  In  every  other  case  specified  in  the  last  section,  the  judge 
or  justice  must  deliver  the  undertaking  to  the  petitioner,  immediately  after  his  approval 
thereof. 

§  2265.    How  proceedings  under  this  title  to  be  stayed. 

Where  a  petition  is  presented,  as  prescribed  in  this  title,  the  proceedings  thereupon 
before  the  final  order,  and  if  the  final  order  awards  delivery  of  the  possession  to  the 
petitioner,  the  issuing  or  execution  of  the  warrant  thereupon,  cannot  be  stayed  or  sus- 
pended by  any  court  or  judge,  except  in  one  of  the  following  methods  : 

1.  By  an  order  made,  or  an  undertaking  filed,  upon  an  appeal,  in  a  case  and  in  the 
manner  specially  prescribed  for  that  purpose  in  this  title. 

2.  By  an  injunction  order,  granted  in  an  action  against  the  petitioner.  Such  an  in- 
junction shall  not  be  granted  before  the  final  order  in  the  special  proceeding,  except 
in  a  case  where  an  injunction  would  be  granted  to  stay  the  proceedings,  in  an  action 
of  ejectment,  brought  by  the  petitioner,  and  upon  the  like  terms ;  or  after  the  final 
order,  except  in  a  case  where  an  injunction  would  be  granted  to  stay  the  execution  of 
the  final  judgment  in  such  an  action,  and  upon  the  like  terms. 

R.  S.  §  47- 

In  case  the  magistrate  refuse  to  issue  the  warrant  on  demand 
after  decision,  mandamus  lies.     People  v.  Willis,  5  Abb.  205. 

Precedent  for  Warrant. 

To  the  Sheriff  of  Ulster  County  : 

Whereas,  Cornelius  Van  Cott,  by  petition  made  and  verified  by 
him  and  presented  to  me.  county  judge  of  Ulster  County,  did  allege 
and  prove  that  (here  recite  facts  stated  in  petition).      Whereupon  I 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    557 

Art.   10.     Warrant  and  how  Proceedings  Stayed. 

issued  a  precept,  requiring  the  said  Lamont  Jones  forthwith  to  re- 
move from  the  said  premises,  or  show  cause  before  me  at  a  certain 
time,  now  passed,  why  the  possession  of  the  said  premises  should 
not  be  delivered  to  the  said  petitioner.  And  no  good  cause  having 
been  shown,  or  any  way  appearing  to  the  contrary,  and  due  proof 
of  the  service  of  such  precept  having  been  made  to  me  :  There- 
fore in  the  name  of  the  people  of  the  State  of  New  York,  you  are 
commanded  to  remove  the  said  Lamont  Jones,  and  all  persons,  from 
the  said  premises,  and  put  the  petitioner  in  full  possession  thereof. 
In  witness  whereof,  I  have  subscribed  to  these  presents,  the  28th 
day  of  June,  1886. 

WILLIAM  S.  KENYON, 

County  Judge  of  Ulster  County. 

Where  a  warrant  complies  with  §  2251  of  the  Code,  the  fact 
that  it  recites  the  name  of  the  husband  of  the  tenant  against 
whom  the  proceedings  are  taken  does  not  make  it  defective, 
Babin  v.  Ensley,  14  App.  Div.  548,  43  Supp.  849.  Where  a 
tenant  surrenders  the  premises  under  a  final  order  in  summary 
proceedings,  the  issuance  of  a  warrant  is  unnecessary.  Gallagher 
V.  Reilly,  16  Daly,  227,  31  St.  Rep,  556,  10  Supp.  536.  It  is  no 
part  of  the  duty  of  a  justice  to  deliver  the  warrant  to  the  officer 
for  execution.  The  warrant  is  issued  when  it  is  signed  and  de- 
livered to  the  clerk  of  the  court.  AsJi  v.  Purjicll,  26  Abb.  N.  C. 
92,  19  Civ.  Pro.  234,  16  Daly  189,32  St.  Rep.  606,  11  Supp.  514, 

The  provisions  of  §  2253  authorize  a  landlord  to  recover  in  the 
same  action  for  rent  due  and  accruing  according  to  the  terms  of 
the  lease  and  for  the  use  by  the  tenant  up  to  the  time  of  issuing 
the  warrant.  Fursnian  v.  Pcnnace,  15  Civ.  Pro.  340,  2  Supp,  339, 
An  eviction  does  not  discharge  from  payment  of  rent  already  ac- 
crued, it  only  annuls  the  lease  as  to  future  rights  and  liabilities. 
Johnson  v.  OppoiJic'nn,  55  N.  Y.  280.  The  effect  of  the  judgment 
in  summary  proceedings,  and  its  execution,  is  that  the  lessee  is 
divested  of  all  right  to,  and  control  over,  the  property,  and  the 
owners  are  in  possession  as  of  their  former  estate,  as  owners  of  the 
reversion.  Pur  sell  v.  Neiv  York  Life  Insurance  Compajiy,  42  N. 
Y.  Super,  383.  Though  the  tenant  has  been  removed  from  the 
demised  premises  for  non-payment  of  rent,  yet  the  landlord  can 
recover  the  rent  due  by  action  up  to  the  time  of  issuing  the  war- 
rant to  dispossess,  Hinsdale  v.  White,  6  Hill,  507 ;  McKeon  v. 
Whiting,  3  Denio,  452  ;  Giles  v.  Comstock,  4  N.  Y.  270;  Academy 
oj  Music  v,  Hackett,  2  Hilt.  217  ;  Whitney  v.  Meyers,  i  Duer,  266  ; 
Stuyvesant  v.  Ginnlcr,  12  Abb,  (N.  S.)  6;  Johnson  v,  Oppenheiuiy 


558   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.   lo.     Warrant  and  how  Proceedings  Stayed. 


55  N.  Y.  280.  Where  the  eviction  was  during  a  quarter  for 
which  rent  was  payable  in  advance,  it  was  held  the  most  the 
tenant  could  equitably  claim  was  a  deduction  for  the  unexpired 
part  of  the  quarter.  Healy  v.  McManus,  23  How.  238;  Giles  v. 
Conistock,  4  N.  Y,  270.  It  is  said  in  some  of  the  cases  above  cited, 
and  in  FcathcrstonJiaiigJi  v.  Bradshaw,  i  Wend.  134;  Davidson  v. 
Donadi,  2  E.  D.  S.  121  ;  Hackctt  v.  Richards,  3  id.  13  ;  Crane  v. 
Hardman,  4  id.  339,  that  the  remedy  after  default  is  not  on  the 
lease,  but  against  the  tenant  as  a  wrong-doer.  The  section,  as 
it  now  stands,  provides  for  these  contingencies  : 

In  the  absence  of  special  direction  by  the  landlord,  he  cannot 
be  held  liable  for  any  abuse  of  process  by  the  officer.  Welch  v. 
Cochran,  63  N.  Y.  181.  But  where  the  landlord  directs  the  re- 
moval of  the  property  of  the  tenant,  or  that  of  others,  in  the 
landlord's  possession,  he  should  be  held  liable  for  the  negligence 
or  carelessness,  if  any,  of  the  constable  removing  them,  but  the 
question  of  due  care  and  prudence  is  peculiarly  one  of  fact  for 
the  referee.  Janscn  v.  Bernard,  12  Week.  Dig.  499.  Where  the 
rent  is  payable  monthly  in  advance  under  a  lease  for  a  year,  the 
landlord  is  entitled  to  a  whole  month's  rent,  notwithstanding  the 
tenant  is  dispossessed  by  virtue  of  a  warrant  in  summary  pro- 
ceedings before  the  expiration  of  the  month  for  default  in  pay- 
ment. Bernstein  v.  Heifieman,  23  Misc.  466.  An  action  may  be 
maintained  to  perpetually  restrain  summary  proceedings  pending 
before  a  county  judge  instituted  by  defendant  in  that  action  to 
remove  the  plaintiff  therein  from  certain  premises  upon  averment 
and  proof  that  the  defendant  was  not  the  owner  of  the  premises, 
and  that  the  plaintiff  was  induced  to  sign  the  lease  by  fraud  on  the 
part  of  the  defendant,  and  this  without  regard  to  the  question  as  to 
the  jurisdiction  of  the  county  judge  to  try  the  question  of  fraud  in 
the  summary  proceedings.  Becker  v.  Church,  11 5  N.  Y.  562,  26  St. 
Rep.  775,  affirming  42  Hun,  258,  5  St.  Rep.  97.  A  stay  of  pro- 
ceedings pending  appeal  must  be  obtained  in  the  method  pre- 
scribed by  statute,  and  an  injunction  will  not  be  granted  for  the 
purpose.  Lndzvigv.  Lazarus,  10  App.  Div.  62,  41  Supp.  773.  A 
court  of  equity  has  jurisdiction  to  perpetually  restrain  summary 
proceedings  in  a  district  court  or  in  a  justices'  court  where  there 
are  peculiar  equities  which  such  a  court  cannot  decide.  Noble  v. 
McGurk,  16  Misc.  461,  39  Supp.  921.  They  may  be  restrained 
by  injunction  when  void  for  want  of  jurisdiction.     Schneider  v. 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    559 

Art.   10.     Warrant  and  how  Proceedings  Stayed. 

Lcizmann,  57  Hun,  561,  33  St.  Rep.  351,  19  Civ.  Pro.  217,  11 
Supp.  434.  But  the  court  will  only  restrain  summary  proceed- 
ings in  extreme  and  clear  cases.  Campbell  v.  Babcock,  13  Supp. 
843,  26  Abb.  N.  C.  35.  Injunction  cannot  be  granted  on  the 
ground  that  the  petition  did  not  describe  the  premises  or  did  not 
state  the  petitioner's  interest  and  was  not  duly  verified,  as  these 
are  matters  within  the  jurisdiction  of  the  justice  to  determine  ; 
or  that  a  defence  of  another  action  pending  was  allowed.  Bliss 
V.  Murray,  17  Civ.  Pro.  64,  7  Supp.  917.  In  an  action  by 
defendant  to  annul  a  lease  on  equitable  grounds  an  injunction 
may  be  granted.  Rodgers  v.  Earle,  5  Misc.  164,  23  Civ.  Pro. 
220.  Section  2265  implies  that  an  injunction  may  be  granted 
before  the  final  order  in  summary  proceedings,  at  least  where  one 
could  be  granted  to  stay  proceedings  in  an  action  of  ejectment. 
Gilniaiiv.  Prentice,  3  St.  Rep.  544,  citing  Chadiuick  v.  Spargur,  i 
Civ.  Pro.  422.  An  injunction  will  not  issue  unless  the  magistrate 
or  court  has  no  jurisdiction.  Capet  v.  Parker,  3  Sandf.  662 ; 
Sherman  v.  Wright,  49  N.  Y.  227.  In  case  there  has  been  fraud, 
undue  advantage,  or  surprise  in  the  conduct  of  the  proceedings. 
Mary  v.  James,  2  Daly,  437;  Griffith  v.  Brozvn,  28  How.  4; 
Cure  V.  Crazvford,  5  id.  293  ;  Forrester  v.  Wilson,  i  Duer,  624 ; 
and  in  case  the  defence  is  of  an  equitable  character,  not  cogniz- 
able before  the  justice  of  county  court.  Mclntyre  v.  Hernandez^ 
39  How.  121  ;  ArmstoJig  v.  Cniiimings,  20  Hun.  313.  It  is  said 
by  Landon,  J.,  in  dissenting  opinion  xw  Becker  v.  Chnrch,  42  Hun, 
264,  citing  Knox  v.  McDonald,  25  id.  268,  and  Broadwell  v.  Hol- 
comb,  4  Civ.  Pro.  159,  that  summary  proceedings  will  not  be  re- 
strained by  injunction  unless  the  tenant  has  some  equity  or 
defence  of  which  the  county  judge  has  no  jurisdiction.  Same 
principle,  Gilman  v.  Prentice,  3  State  Rep.  544.  This  question 
is  discussed  in  Bokce  v.  Haminersly,  16  How.  461.  The  decision 
in  Beanv.  Pettcngill,  7  Robt.  7,  is  against  the  current  of  author- 
ity as  to  the  right  to  an  injunction  in  case  of  lack  of  jurisdiction. 
In  addition  to  these  grounds,  it  is  held  in  Landon  v.  Supervisors 
of  Schenectady,  24  Hun,  75.  that  the  right  of  a  tenant  to  remove 
a  building  may  be  sufficient  ground  for  an  injunction.  Where 
a  justice  of  a  New  York  District  Court  refuses  to  appoint  a  guard- 
ian ad  litem  for  an  infant  defendant,  the  latter  cannot  maintain 
an  action  to  restrain  the  enforcement  of  the  warrant ;  the  remedy 
is  by  appeal.    Jessiiriin  v.  Mackie,  24  Hun,  624,  appeal  dismissed. 


56o   PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 
Art.   lo.     Warrant  and  how  Proceedings  Stayed. 

86  N.  Y.  622.  An  injunction  will  not  be  granted  after  the  war- 
rant of  dispossession  has  been  executed.  Roberts  v.  Matthews, 
18  Abb.  199.  Nor  where  the  defendant  has  a  perfect  defence  to 
the  proceeding,  and  does  not  show  that  he  had  no  evidence  to 
prove  such  defence.  Scebach  v.  McDonald,  11  Abb.  95.  Nor  in 
any  case  where  the  defence  could  have  been  proven  on  the  hear- 
ing. Rapp  V.  Williams,  4  T.  &  C.  174;  Wordsworth  v.  Lyton,  5 
How.  463;  Smith  v.  Burr,  8  id.    168;  Marks  w.   Wilson,  ii  Abb. 

87  ;  Wa?'dv.  Kelsey,  14  id.  106;  McGune  v.  Palmer,  5  Robt.  607. 
An  injunction  will  not  issue,  because  there  exists  a  counterclaim 
against  the  rent,  if  the  landlord  is  solvent.  Brown  v.  Metropoli- 
tan Gas-Light  Co.,  38  How.  133.  As  to  whether  it  will  issue 
where    it    is    claimed    lease     has    been    extended,    see    Rapp  v. 

Williams^  i  Hun,  716;  Crawford  v.  Kastner,  26  id.  440.  An  in- 
junction will  not  be  granted  to  one  not  a  party  to  the  proceeding 
merely  because  he  is  likely  to  be  disturbed  in  his  possession,  the 
threatened  injury  not  being  irreparable.  Aaron  v.  Baiim,  7  Robt. 
340;  Many  yr.  James,  37  How.  52.  Where  an  action  is  pending 
for  a  renewal  of  the  lease,  if  the  tenant  shows  himself  equitably 
entitled  to  a  renewal,  an  injunction  will  issue.  Graham  v .  James, 
7  Robt,  468  ;  Crawford  v.  Kastner,  26  Hun,  408.  An  injunction 
can  issue  after  the  warrant  is  issued.  GrijfitJi  v.  Brozvn,  28  How. 
4;  Forrester  V.  Wilson,  i  Duer,  624.  In  Carselsv.  Fisk,  15  Week. 
Dig.  255,  it  is  said  that  nothing  short  of  an  extreme  case,  clearly 
established,  will  justify  an  injunction  to  stay  summary  proceed- 
ings against  a  tenant.  In  Knox  v.  McDonald,  25  Hun,  268,  it  is 
held  that  an  injunction  should  not  issue  to  restrain  the  execution 
of  the  warrant,  unless  the  plaintiff  is  making  an  oppressive  use 
of  it,  or  that  the  plaintiff's  title  to  the  premises  has  terminated, 
or  that  the  defendant  has  acquired  some  interest  or  equity  in  the 
subject-matter  of  the  action  which  should  be  protected,  or  that 
the  judgment  was  obtained  by  fraud  or  collusion.  An  injunction 
cannot  be  granted  until  there  has  been  a  final  order  in  the  sum- 
mary proceedings.     Matter  of  White,  12  Abb.  N.  C.  348. 

An  injunction  will  not  be  granted  to  prevent  the  landlord 
from  instituting  proceedings  on  the  ground  that  he  has  extended 
the  lease.  That  question  is  to  be  determined  in  the  summary 
proceedings.  Rapp  v.  Williams,  i  Hun,  716.  Before  the  final 
order  in  summary  proceedings,  an  injunction  can  be  granted 
against  the  petitioner,  only   in  a  case  where  it  would  be  granted 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    561 

Art.   10.     Warrant  and  how  Proceedings  Stayed. 

to  stay  proceedings  in  an  action  of  ejectment.  People  v.  Parker^ 
63  How.  3.  After  the  entry  of  a  final  order  awarding  possession 
to  the  landlord  by  reason  of  the  illegal  use  of  the  premises,  the 
court  has  no  authority  to  stay  execution  of  warrant.  Shaw  v.  Mc- 
Carty,  2  McCarty,  235  ;  Van  ScJiaick  v.  Coster,  id.  239.  The  justice 
loses  jurisdiction  by  an  indefinite  adjournment,  and  the  execution 
of  his  warrant  thereafter  should  be  restrained  by  injunction.  Kier- 
nan  v.  Reining,  2  How.  (N.  S.)  89;  Brown  v.  Cassady,  34  Hun, 
55.  When  the  defence  is  an  equitable  one,  if  the  District  Court 
proceed  with  the  case  it  may  be  enjoined.  Crawford  v.  Kastner, 
26  Hun,  440.  There  is  no  provision  for  stay  on  an  appeal  from 
a  judgment  in  case  of  tenant  holding  over  after  expiration  of  his 
term,  or  in  case  of  forcible  entry  or  detainer,  except  where  there 
are  allegations  of  fraud  or  collusion  in  the  proceedings,  or  that 
the  magistrate  has  no  jurisdiction.  Coster  v.  Va^i  Schaick,  64 
How.  100. 

In  an  action  on  an  undertaking,  given  in  consideration  of 
plaintiff  discontinuing  proceedings  to  dispossess  defendant,  and 
to  deliver  up  said  premises  at  a  specified  time,  which  defendant 
failed  to  do,  the  reasonable  costs  and  expenses  incurred  by  plain- 
tiff in  obtaining  said  possession  are  a  portion  of  the  damage 
which  he  is  entitled  to  recover.  ScJiermerJiorn  v.  Carter,  8  Week. 
Dig.  383.  This  section  was  held  applicable  to  chapter  384,  Laws 
of  1854,  relating  to  tax  sales  in  the  city  of  Brooklyn,  and  pro- 
ceedings thereunder  were  stayed  by  undertaking  in  People  v. 
Palmer,  16  Hun,  136. 

Precedent  for  Undertaking  where  Property  has  been  Sold. 

(Title.) 

Whereas,  In  certain  proceedings,  commenced  on  the  14th  day  of 
July,  1886,  before  William  S.  Kenyon,  Esq.,  county  judge  of  Ulster 
County,  by  Lamont  Johnson  against  Daniel  Hinkley,  to  recover  the 
possession  of  certain  real  estate,  to  wit :  (here  insert  description  of 
property)  sold  on  execution  against  said  Daniel  Hinkley,  the  said  judge 
has,  by  final  order  made  the  12th  day  of  August,  1886,  established  that 
the  said  Daniel  Hinkley  continues  in  possession  of  said  real  property, 
after  such  execution  sale,  and  the  said  Daniel  Hinkley,  having  paid  the 
costs  of  said  special  proceedings,  and  filed  the  affidavit  required  by 
subdivision  3  of  §  2254  of  the  Code  of  Civil  Procedure:  Now,  there- 
fore, in  order  to  stay  the  issuing  of  the  warrant  in  said  proceedings,  and 
in  order  to  satisfy  the  requirements  of  said  statute,  we,  the  said  Daniel 
Hinkley,  before  named,  and  James  Dyer,  of  Kingston,  and  Hiram 
36 


562    PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND. 


Art.   II.     Redemption. 


Sidney,  of  Saugerties,  said  county,  do  hereby  undertake  that  the  said 
Daniel  Hinkley  will  pay  to  the  said  Lamont  Johnson  any  costs  and 
damages  which  may  be  recovered  against  him,  the  said  Daniel  Hinkley, 
in  an  action  of  ejectment  to  recover  the  property  to  be  brought  against 
him,  by  the  said  Lamont  Johnson,  within  six  months  thereafter,  and 
that  he,  the  said  Daniel  Hinkley,  will  not  commit  waste  upon,  or  injury 
to,  the  property  during  his  occupation. 

Dated  Kingston,  August  20,  1887. 

{Add  acknowkdgmeiit  and  justification,  usual  forms^ 

ARTICLE  XL 

Redemption.    §§  2256,  2257,  2258,  2259. 

§  2256.  Redemption  by  lessee. 

Where  the  special  proceeding  is  founded  upon  an  allegation  that  a  lessee  holds 
over,  after  a  default  in  the  payment  of  rent,  and  the  unexpired  term  of  the  lease, 
under  which  the  premises  are  held,  exceeds  five  years,  at  the  time  when  the  warrant 
is  issued ;  the  lessee,  his  executor,  administrator,  or  assignee,  may,  at  any  time  within 
one  year  after  the  execution  of  the  warrant,  pay  or  tender  to  the  petitioner,  his  heir, 
executor,  administrator,  or  assignee,  or  if,  within  five  days  before  the  expiration  of 
the  year,  he  cannot,  with  reasonable  diligence,  be  found  within  the  city  or  town, 
wherein  the  property,  or  a  portion  thereof,  is  situated,  then  to  the  judge  or  justice 
who  issued  the  warrant,  or  his  successor  in  office,  all  rent  in  arrear  at  the  time  of  the 
jjayment  or  tender,  with  interest  thereupon,  and  the  costs  and  charges  incurred  by  the 
petitioner.  Thereupon  the  person  making  the  payment  or  tender  shall  be  entitled  to 
the  possession  of  the  demised  premises,  under  the  lease,  and  may  hold  and  enjoy  the 
same,  according  to  the  terms  of  the  original  demise,  except  as  otherwise  prescribed  in 
the  next  section  but  one. 

L.  1842,  ch.  240,  §  I  (4  Edm.  661),  am'd. 

§  2257.  Id. ;  by  creditor  of  lessee. 

In  a  case  specified  in  the  last  section,  a  judgment  creditor  of  the  lessee,  whose 
judgment  was  docketed  in  the  county,  before  the  precept  was  issued,  or  a  mortgagee 
of  the  lease,  whose  mortgage  was  duly  recorded,  in  the  county,  before  the  precept 
was  issued,  may,  at  any  time  before  the  expiration  of  one  year  after  the  execution  of 
the  warrant,  unless  a  redemption  has  been  made  as  prescribed  in  the  last  section,  file 
with  the  judge  or  justice  who  issued  the  warrant,  or  with  his  successor  in  office,  a 
notice,  specifying  his  interest  and  the  sum  due  to  him ;  describing  the  premises  ;  and 
stating  that  it  is  his  intention  to  redeem  as  prescribed  in  this  section.  If  a  redemption 
is  not  made  by  the  lessee,  his  executor,  administrator,  or  assignee,  within  a  year  after 
the  execution  of  the  warrant,  the  person  so  filing  a  notice,  or,  if  two  or  more  persons 
have  filed  such  notices,  the  one  who  holds  the  first  lien,  may,  at  any  time  before  two 
o'clock  of  the  day,  not  a  Sunday  or  a  public  holiday,  next  succeeding  the  last  day  of 
the  year,  redeem  for  his  own  benefit,  in  like  manner  as  the  lessee,  his  executor,  ad- 
ministrator, or  assignee  might  have  so  redeemed.  Where  two  or  more  judgment 
creditors  or  mortgagees  have  filed  such  notices,  the  holder  of  the  second  lien  may  so 
redeem,  at  any  time  before  two  o'clock  of  the  day,  not  a  Sunday  or  a  public  holiday, 
next  succeeding  that  in  which  the  holder  of  the  first  lien  might  have  redeemed;  and 
the  holder  of  the  third  and  each  subsequent  lien,  may  redeem,  in  like  manner,  at  any- 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    563 


Art.   II.     Redemption. 


time  before  two  o'clock  of  the  day,  not  a  Sunday  or  a  public  holiday,  next  succeeding 
that  in  which  his  predecessor  might  have  redeemed.  But  a  second  or  subsequent 
redemption  is  not  valid,  unless  the  person  redeeming  pays  or  tenders  to  each  of  his 
predecessors  who  has  redeemed,  the  sum  paid  by  him  to  redeem,  and  also  the  sum 
due  upon  his  judgment  or  mortgage ;  or  deposits  those  sums  with  the  judge  or  justice, 
for  the  benefit  r..;  his  predecessor  or  predecessors. 
L.  1842,  ch.  240,  §  I  (4  Edm.  461). 

§  2258.  The  last  two  sections  qualified. 

Where  a  redemption  is  made,  as  prescribed  in  either  of  the  last  two  sections,  the 
rights  of  the  person  redeeming  are  subject  to  a  lease,  if  any,  executed  by  the  peti- 
tioner, since  the  warrant  was  issued,  so  far  that  the  new  lessee,  his  assigns,  under-ten- 
ants, or  other  representatives,  may,  upon  complying  with  the  terms  of  the  lease,  hold 
the  premises  so  leased  until  twelve  o'clock,  noon,  of  the  first  day  of  May,  next  suc- 
ceeding the  redemption.  And,  in  all  other  respects,  the  person  so  redeeming,  his 
assigns  and  representatives,  succeed  to  all  the  rights  and  liabiUties  of  the  petitioner, 
under  such  a  lease. 

§  2259.  Order  to  be  made  thereupon;  liability  of  person  re- 
deeming. 

The  person  redeeming,  as  prescribed  in  the  last  three  sections,  or  the  owner  of  the 
property  so  redeemed,  may  present  to  the  judge  or  justice  who  issued  the  warrant,  or 
to  his  successor  in  office,  a  petition,  duly  verified,  setting  forth  the  facts  of  the 
redemption,  and  praying  for  an  order,  establishing  the  rights  and  liabiUties  of  the  parties 
upon  the  redemption.  Whereupon  the  judge  or  justice  must  make  an  order  requiring 
the  other  party  to  the  redemption  to  show  cause  before  him,  at  a  time  and  place 
therein  specified,  why  the  prayer  of  the  petition  should  not  be  granted.  The  order 
to  show  cause  must  be  made  returnable,  not  less  than  two  nor  more  than  ten  days, 
after  it  is  granted ;  and  it  must  be  served  at  least  two  days  before  it  is  returnable. 
Upon  the  return  thereof,  the  judge  or  justice  must  hear  the  allegations  and  proofs  of 
the  parties,  and  must  inake  such  a  final  order  as  justice  requires.  The  costs  and 
expenses  must  be  paid  by  the  petitioner.  The  final  order,  or  a  certified  copy  thereof, 
may  be  recorded  in  like  manner  as  a  deed.  A  person,  other  than  the  lessee  who  re- 
deems as  prescribed  in  the  last  three  sections,  succeeds  to  all  the  duties  and  liabilities 
of  the  lessee,  accruing  after  the  redemption,  as  if  he  was  named  as  lessee  in  the  lease. 

A  tenant  dispossessed  under  summary  proceedings  cannot  re- 
deem within  the  year,  unless  on  payment  of  all  rent  in  arrears  and 
all  costs  and  charges  incurred  by  the  lessor,  he  is  not  entitled  to 
an  account  of  the  intermediate  rents  and  profiits.  Piirsell  v.  N. 
Y.  Life  Insurance  Co.,  10  J.  &  S.  383.  And  it  is  held  in  the  same 
case  that  tender  of  the  difference  between  said  arrears  and  the 
profits  received  by  the  landlord  during  the  interval  is  not  sufifi- 
cient.  The  landlord  can  only  be  called  upon  to  account  after  a 
redemption  under  the  statute  has  been  effected,  but  if  he  has 
accepted  payment  of  a  less  sum  an  accounting  may  be  had  to 
ascertain  whether  there  has  been  a  waiver.  Crawford  v.  Waters, 
46  How.  210.  The  provisions  of  2  Revised  Statutes,  5I5>  §  43> 
were  not  repealed  as  to  leases  having  an  unexpired  term  of  five 


564   PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 
Art.    II.     Redemption. 

years  to  run,  by  chap.  240,  Laws  of  1842.  Purscll  v.  A^.  Y.  Life 
Insurance  Co.,  Af2  N.  Y.  Super.  383.  To  entitle  the  lessee  to  re- 
demption it  must  appear  that  the  unexpired  term  of  the  lease 
exceeds  five  years  at  the  time  of  the  issuing  the  warrant,  and 
that  the  rent  and  costs  have  been  properly  tendered  or  security 
offered.  Bokee  v.  Havnnersly,  16  How.  461,  The  right  of  a 
tenant  to  redeem  from  purchaser  at  foreclosure  is  discussed  in 
People  V.  Dudley,  58  N.  Y.  323. 

A  tenant  who  has  been  removed  for  non-payment  of  taxes  and 
assessments  cannot  recover  possession  by  tender  thereafter. 
Witty  v.  Acton,  58  Hun,  552,  35  St.  Rep.  949,  12  Supp.  757, 
af^firming  29  St.  Rep.  653,  9  Supp.  247.  Temporary  receiver  has 
power  to  maintain  redemption  proceedings  and  acts  therein  both 
for  the  corporation  and  its  creditors,  and  the  corporation  is  not 
an  indispensable  party.  The  Code  includes  under  the  term 
"  rent  "  only  rent  proper,  and  not  taxes  and  other  expenditures 
imposed  by  the  lease  upon  the  tenant,  and  under  the  term 
"  costs  and  charges  "  only  the  costs  and  charges  in  regaining  pos- 
session. Bicn  V.  Bixhy,  18  Misc.  415,  41  Supp.  433,  75  St.  Rep. 
837.  The  adjustment  of  the  rights  of  the  parties  in  a  proceeding 
by  a  tenant  to  redeem  after  being  dispossessed  is  not  limited  to 
the  covenants  contained  in  the  lease.  Bicn  v.  Bixby,  22  Misc. 
126,  48  Supp.  810,  82  St.  Rep.  810.  In  a  proceeding  by  a  tenant 
under  a  ground  lease  which  has  several  years  to  run,  to  redeem 
after  dispossession  for  non-payment  of  rent,  the  landlord  is  en- 
titled to  credit  for  repairs  ordered  by  the  building  department 
and  alterations  and  improvements  essential  to  the  successful 
management  of  the  property,  made  after  the  dispossession  took 
place,  for  insurance  during  the  intervening  time,  and  for  expenses 
incurred  for  legal  services  in  procuring  the  dispossession  and  in  pro- 
curing proper  custodians  during  the  proceeding.  Bicn  v.  Bixby, 
22  Misc.  126,  48  Supp.  810,  82  St.  Rep.  810.  While  petitioner's 
tender  to  the  landlord  of  the  rent  actually  due,  together  with  the 
costs  and  charges  of  the  summary  proceedings,  is  sufficient  to 
form  the  basis  of  redemption  proceedings  under  §  2256  of  the 
Code,  final  judgment  of  the  amount  to  be  paid  is  not  dependent 
upon  the  claim  for  rent  but  dependent  upon  general  principles 
of  equity.  The  rights  of  the  parties  founded  upon  circumstances 
arising  during  a  period  when  the  premises  were  in  the  landlord's 
custody,  intermediate  between  the  tenant's  dispossession   and  his 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    565 


Art.   12.     Appeal  and  Restitution. 


petition  for  repossession,  are  not  to  be  measured  by  the  lease. 
Bienv.  Bixby,  22  Misc.  128,  modifying  and  aflfirming  S.  C.  18 
Misc.  415.  Where  the  tenant  is  credited  with  rent  received  from 
an  intermediate  tenant,  the  landlord  should  be  allowed  the  rental 
value  of  new  furnishings  supplied  by  him  and  which  formed  part 
of  the  consideration  for  such  rent.  Bien  v.  Bixby,  22  Misc.  126, 
48  Supp.  810,  82  St.  Rep.  810.  In  such  a  proceeding  the  landlord 
cannot  be  allowed  commissions  on  the  rents  received  by  him  and 
credited  to  the  tenant.  Bien  v.  Bixby,  22  Miss.  126,  48  Supp. 
810,  82  St.  Rep.  810.  In  such  a  proceeding  the  landlord  cannot  be 
charged  with  rent  not  actually  received  by  him,  unless  his  failure 
to  collect  the  same  was  the  result  of  negligence  or  mismanage- 
ment. Bien  v.  Bixby,  22  Misc.  126,  48  Supp.  810,  82  St.  Rep. 
810.  A  redemption  takes  effect  as  of  the  date  of  tender  by  the 
tenant.  Bien  v.  Bixby,  22  Misc.  126,  48  Supp.  810,  82  St.  Rep. 
810. 

ARTICLE  XII. 

Appeal  and  Restitution.    §§  2260,  2261,  2262,  2263. 

§  2260.  Appeal. 

An  appeal  may  be  taken  from  a  final  order,  made  as  prescribed  in  this  title,  to  the 
same  court,  within  the  same  time,  and  in  the  same  manner,  as  where  an  appeal  is  taken 
from  a  judgment  rendered  in  the  court,  of  which  the  judge  or  justice  is  the  presiding 
officer,  and  with  like  effect ;  except  as  otherwise  prescribed  in  the  next  two  sections. 

Substituted  for  §  47,  R.  S.,  am'd  ;  L.  1868,  ch.  828  (7  Edm.  357),  §  52  ;  L.  1849,  ch.  193 
(2  Edm.  534). 

§2261.     [Am'd,  1895.]     Effect  of  appeal  limited  in  certain  cases. 

The  issuing  or  execution  of  the  warrant  cannot  be  stayed  by  such  an  appeal,  or  by 
the  giving  of  an  undertaking  thereupon,  otherwise  than  as  prescribed  in  the  next 
section.  An  appeal  cannot  be  taken  to  the  Court  of  Appeals,  from  a  final  determina- 
tion of  the  appellate  division  of  the  Supreme  Court,  upon  such  an  appeal,  unless  the 
latter  court,  by  an  order,  made  at  the  term  of  the  appellate  division  where  the  final 
order  is  made,  or  the  next  term  thereafter,  allows  it  to  be  taken. 

L.  1895,  ch.  946. 

§  2262.    [Am'd,  1895.]    "Warrants  ;  how  stayed  on  appeal. 

Where  an  appeal  is  taken  from  a  final  order,  awarding  delivery  of  possession  to  the 
petitioner,  which  establishes  that  a  lessee  or  tenant  holds  over,  after  a  default  in  pay- 
ment of  rent  or  from  an  order  or  judgment  affirming  such  final  order,  the  issuing  and 
execution  of  the  warrant  may  be  stayed  by  the  order  of  the  county  judge,  and  in  the 
city  and  county  of  New  York  by  a  justice  of  the  Supreme  Court,  upon  the  appellant's 
giving  the  security  required  to  perfect  the  appeal,  and  to  stay  the  execution  of  the 
order  appealed  from  and  also  an  undertaking  to  the  petitioner  in  a  sum  and  with 
sureties  approved  by  the  county  judge  or  in  the  city  and  county  of  New  York  by  a 
justice  of  the  Supreme   Court  to  the  effect  that  if,  upon  the  appeal,  a  final  deter- 


566    PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 

Art.    12.     Appeal  and  Restitution. 

minatiou  is  rendered  against  the  appellant  he  will  pay  all  rents  accruing  or  to  accrue 
upon  the  premises,  or  if  there  is  no  lease  thereof  the  value  of  the  use  and  occupation 
of  the  premises  subsequent  to  the  institution  of  the  special  proceedings. 
L.  1895,  ch.  946. 

§  2263.  Appellate  court  may  award  restitution ;  action  for  dam- 
ages. 

If  the  final  order  is  reversed  upon  the  appeal,  the  appellate  court  may  award  resti- 
tution to  the  party  injured,  with  costs  ;  and  it  may  make  an  order,  or  issue  any  other 
mandate,  necessary  to  carry  its  determination  into  effect.  The  person  dispossessed 
may  also  maintain  an  action,  to  recover  the  damages  which  he  had  sustained  by  the 
dispossession. 

§§  48  and  49,  R.  S. 


Under  the  statutes  before  the  present  Code,  the  right  of  appeal 
to  the  county  court  existed,  from  justices'  court,  and  was  con- 
current with  certiorari.  Williajus  v.  Bigelozv,  11  How.  83; 
People  V.  Perry^  16  Hun,  461.  But  the  decision  of  the  District 
Courts  in  New  York  City,  or  the  Marine  Court,  must  be  reviewed 
\iy  certiorari.  Mclntyre  v.  Herandez,  39  How.  121  ;  Freeman  v. 
Ogden,  17  Abb.  326.  And  as  the  practice  then  existed  no  appeal 
lay  to  the  General  Term  from  the  county  court.  Carpenter  v. 
Green,  6  T.  &  C.  550.  As  the  section  now  stands  the  appeals  are 
to  be  taken  in  the  usual  manner  in  causes  tried  in  the  courts 
where  the  proceedings  are  had.  In  Shaw  v.  McCarty,  63  How. 
286,  it  is  said,  that  an  appeal  from  the  present  city  court  must 
be  taken  to  the  General  Term  of  that  court,  and  then  to  the  Com- 
mon Pleas.  A  claim  for  possession  of  land  does  not  entitle  ap- 
pellant to  a  new  trial  on  appeal  under  §  3068.  Brown  v.  Cas- 
sady,  34  Hun,  55. 

A  final  order  of  a  district  court  in  summary  proceedings 
obtained  by  default  is  appealable  to  the  Court  of  Appeals,  but 
an  order  denying  a  motion  to  open  such  default  is  not  appealable. 
Jacobs  V.  Zeltner,  9  Misc.  455,  61  St.  Rep.  104,  30  Supp.  238,  24 
Civ.  Proc.  45.  As  to  what  constitutes  reversal  under  §  2263  of 
the  Code  so  as  to  allow  a  recovery  of  damages  by  the  person  dis- 
possessed, see  Wood  V.  Kernan,  57  Hun,  215.  Where,  on  the 
trial,  the  petitioner  insists  that  the  lease  was  in  writing  and 
disavowed  any  oral  lease,  he  cannot  be  heard  to  say  on  appeal 
that  his  petition  was  founded  upon  an  oral  lease.  Lazarus  v. 
Ludwig,  17  Misc.  378,  40  Supp.  97.  Equity  will  not  interfere  to 
open  a  judgment  in  summary  proceedings  rendered  upon  default 
where   no   fraud   or  want   of  jurisdiction   is  alleged.     Harris  v. 


PROCEEDINGS   TO    RECOVER   THE   POSSESSION   OF   LAND.    567 

Art.    12.     Appeal  and  Restitution. 

Treu,  14  Misc.  172,  35  Supp.  379,  25  Civ.  Pro.  92,  69  St.  Rep. 
809.  The  return  upon  an  appeal  from  a  final  order  in  summary- 
proceedings  should  set  forth  all  that  took  place  prior  to  the 
signing  of  such  order,  but  should  not  contain  any  matters  that 
transpired  thereafter.  Blyss  v.  Coryell,  23  Misc.  477,  51  Supp. 
934,  85  St.  Rep.  934.  A  judgment  entered  in  a  summary  pro- 
ceeding instead  of  a  final  order,  while  defective  in  form,  is  not 
absolutely  void  so  as  to  prevent  an  appeal  being  taken  there- 
from. Co.  Ct.  1898.  Wands  v.  Robarge,  24  Misc.  273,  53  N.Y. 
Supp.  700,  87  St.  Rep.  700. 

The  Court  of  Common  Pleas  has  power  to  order  a  new  trial  in 
reversing  a  final  order  of  a  district  court  in  summary  proceedings. 
MoencJi  v.  Young,  16  Daly  143,  18  Civ.  Pro.  259,  30  St.  Rep. 
430,  9  Supp.  ^'})'J.  The  liability  of  sureties  on  an  undertaking 
given  on  appeal  by  the  terms  of  which  they  covenant  to  pay  all 
rents  accruing  or  to  accrue,  not  exceeding  a  fixed  sum,  covers  the 
time  which  the  appeal  has  actually  kept  lessors  out  of  possession. 
Roscnqiicst  v.  Noble,  21  App.  Div.  583. 

An  appeal  to  the  county  court  of  itself  merely  transfers  the 
case  to  that  court  for  hearing,  but  does  not  stay  the  warrant. 
Sage  V.  Harpending,  34  How.  i.  Only  a  single  appeal  by  all  the 
parties  aggrieved  is  necessary.  People  v.  Gildersleeve,  6  Week. 
Dig.  460  ;  Schenek  v.  Frame,  63  How.  165.  The  right  to  a  stay 
of  proceedings  on  appeal  from  a  final  order  only  exists  where  the 
tenants  holds  over  after  default  in  the  payment  of  rent,  not 
where  the  demised  premises  are  used  for  an  alleged  illegal  pur- 
pose.    Shaiv  V.  MeCarthy,  2  Civ.  Pro.  235. 

Precedent  for  Undertaking  to  Obtain  Order  for  Stay. 

Before  Hon.  William  S.  Renyon,   Coiinly  Judge. 


In  the  Summary  Proceedings,  wherein 
Lament  Johnson  is  landlord, 

agst. 

Daniel  Hinklev,  tenant. 


Whereas,  On  the  17th  day  of  July,  1887,  ni  proceedings  under  the 
Code  of  Civil  Procedure  in  relation  to  summary  proceedings  to  re- 
cover the  possession  of  real  property,  Lament  Johnson,  the  peti- 
tioner, as  landlord,  obtained  a  final  order  against  Daniel  Hinkley, 
awarding  the  said  Johnson  possession  of  the  premises  (here   insert 


568    PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND. 

Art.   12.     Appeal  and  Restitution. 

description),  establisliing  a  default  in  the  payment  of  rent  amount- 
ing to  the  sum  of  $250,  and  allowing  the  said  Lamont  Johnson  the 
sum  of  $25,  costs,  and  the  above-named  Daniel  Hinkley  feeling  ag- 
grieved thereby,  has  appealed  from  the  said  final  order  to  the  county 
court  of  the  county  of  Ulster,  and  the  said  Daniel  Hinkley  having 
given  the  necessary  security  upon  the  said  appeal :  Now,  therefore, 
we,  the  said  Daniel  Hinkley,  Julius  Graham,  and  Simon  Kline,  all  of 
the  city  of  Kingston,  in  the  county  of  Ulster,  do  for  the  purpose  of 
obtaining  an  order  from  the  county  judge,  staying  the  issuing  and 
execution  of  the  warrant  in  said  proceedings,  pursuant  to  the  pro- 
visions of  §  2262  of  the  Code  of  Civil  Procedure,  hereby  undertake 
in  the  sum  of  $500,  that  if  upon  the  said  appeal  a  final  determination 
is  rendered  against  the  said  Daniel  Hinkley,  that  the  said  Daniel 
Hinkley  will  pay  to  the  said  Lamont  Johnson  all  rent  accruing  or  to 
accrue  upon  the  said  premises  (or  if  there  is  no  lease),  the  value  of 
the  use  and  occupation  of  the  premises  subsequent  to  the  institution 
of  the  special  proceedings. 
Dated  August  17,  1887. 

{^Add  justificaiion  and  acknoivledgniejit  in  usual  form. ^ 
Indorsed: — "Thereby  approve  of  the  amount  of  the   within   un- 
dertaking and  the  sufificiency  of  the  sureties  thereon." 

(Signed.) 

Precedent  for  Order  to  Stay  Execution. 

{Caption  usual  form. ) 
(Title.) 

It  having  been  made  to  appear  by  Lamont  Johnson,  that  on  the 
12th  day  of  July,  1887,  in  summary  proceedings  to  recover  the  pos- 
session of  real  property,  the  said  Lamont  Johnson,  as  landlord,  ob- 
tained a  linal  order  against  Daniel  Hinkley,  awarding  the  said 
Lamont  Johnson  the  possession  of  the  premises  known  as  (here  de- 
scribe premises),  and  establishing  a  default  in  the  payment  of  rent; 
and  it  further  appearing  that  the  said  Daniel  Hinkley  has  appealed 
from  the  said  final  order  to  the  county  court  of  this  county,  and  has 
given  the  usual  security  upon  such  appeal,  and  has  also  given  an 
undertaking  to  obtain  a  stay,  according  to  the  requirements  of 
§  2262  of  the  Code  of  Civil  Procedure  in  a  sum  and  with  sureties 
which  have  been  approved  by  me  :  Now,  therefore,  on  motion  of 
De  Witt  Ostrander,  attorney  for  the  said  Daniel  Hinkley,  it  is  hereby 
ordered  that  the  issuing  and  execution  of  the  warrant  upon  the  final 
order  be,  and  the  same  is  hereby,  stayed  until  the  final  determina- 
tion of  the  said  appeal.  WILLIAM  S.  KENYON. 

County  Judge. 

Where  the  proceeding  is  reversed  on  the  ground  of  the  insuf- 
ficiency of  the  landlord's  affidavit,  if  there  is  nothing  in  the  affida- 
vit to  enable  the  court  to  determine  the  rights  of  the  parties,  it  is 
the  duty  of  the  court  to  award  restitution  and  leave  the  parties 
to  assert  their  rights  in  the  legal  way.      Wolcott  v.   Schcnck,   16 


PROCEEDINGS   TO    RECOVER   THE    POSSESSION   OF   LAND.    569 

Art.   12.     Appeal  and  Restitution. 

How,  449  ;  People  v.  Matthews,  38  N.  Y.  451.  But  on  the  other 
bandit  is  said,  in  People  v.  Hamilton,  15  Abb.  328,  affirmed  on 
another  point,  39  N.  Y.  107,  that  on  a  reversal  of  a  judgment  in 
the  landlord's  favor,  restitution  will  not  be  awarded  where  the 
judgment  is  on  the  ground  of  irregularities,  and  it  appears  that 
the  landlord  should  again  prevail  in  regularly  conducted  proceed- 
ings. Restitution  will  not  be  ordered  after  the  tenant's  right  of 
possession  has  expired.  Chretien  v.  Doney,  i  N.  Y.  419;  People 
V.  Gedney,  15  Hun,  475.  But  again  in  People  v.  Loekivood,  3  Hun, 
304,  it  is  held  that,  although  the  judgment  of  the  justice  may  be 
reversed  for  error,  yet  if  the  right  to  the  possession  is  not  clear, 
restitution  will  not  be  awarded  or  costs  given.  Restitution  will 
not  be  ordered  in  favor  of  a  person  not  a  party  to  the  proceeding. 
People  V.  McCaffcry,  42  Barb.  530.  The  parties  on  reversal  are 
restored  to  the  position  they  occupied  before  the  proceedings 
were  instituted.  Hayden  v.  The  Florence  Maehine  Co.,  54  N.  Y. 
221.  Where  restitution  has  been  awarded,  and  the  decision  upon 
which  it  was  had  has  been  subsequently  reversed,  a  re-restitution 
will  be  awarded  as  of  course.  People  v.  Shazv,  i  Cai.  125; 
Matter  of  Shotwell,  10  Johns.  304.  Costs  maybe  given  whether 
restitution  is  awarded  or  not.  Chretien  v.  Doney,  i  N.  Y.  419. 
Plaintiff  is  entitled  to  recover  such  damages  as  were  the  direct 
consequences  of  defendants'  acts.  The  plaintiff  is  not  bound  to 
gather  up  the  fragments  of  his  scattered  and  broken  chattels  ;  he 
may  recover  for  money  concealed  by  him  on  the  premises.  Eten 
V.  Luyster,  60  N.  Y.  252.  An  under-tenant  may  recover  damages, 
being  a  tenant  under  the  statute.  S.  C.  37  Sup.  Ct.  486.  Dam- 
ages to  plaintiff's  business  are  not  recoverable  in  addition  to 
damages  to  property.  In  such  an  action  it  is  immaterial  upon 
what  grounds  the  decision  dispossessing  plaintiff  was  reversed. 
Hayden  v.  Florence  Machine  Co.,  54  N.  Y.  221.  In  such  an  action 
the  process,  if  regular,  protects  the  officer  ;  but  where  an  under- 
tenant, who  was  not  a  party  to  the  proceedings,  was  dispossessed, 
the  landlord  is  responsible.  Croft  v.  King,  8  Week.  Dig.  179; 
see  Welch  v.  Cochran,  63  N.  Y.  181  ;  Jansen  v.  Bernard,  12 
Week.  Dig.  499. 

An  order  reversing  a  final  order  for  lack  of  jurisdiction  should 
provide  for  the  restitution  of  the  tenant.  Bristed  v.  Harrell,  21 
Misc.  93,  46  Supp.  966.  Failure  of  a  person  to  enter  after  res- 
titution does  not  deprive  him  of  the  right  to  recover  any  losssuf- 


570   PROCEEDINGS   TO    RECOVER   THE   POSSESSION    OF   LAND. 
Art.   12.     Appeal  and  Restitution. 

fered  up  to  that  time.  Woods  v,  Kernan,  57  Hun,  215,  32  St. 
Rep.  815,  10  Supp.  654.  A  tenant  who  is  dispossessed  is  not  re- 
stricted to  the  injuries  to  goods  on  removal,  but  may  also  recover 
for  loss  of  use  of  the  premises  from  the  time  he  was  dispossessed 
until  restitution.  Woods  v.  Kernan,  supra.  Where  a  lease  ter. 
minated  at  noon  on  the  first  day  of  May,  and  summary  proceed- 
ings were  begun  on  the  last  day  of  April,  the  court  will  not  grant 
restitution  where  it  appears  that  a  receiver  was  in  possession  en- 
titled to  the  tenant's  interest,  and  that  the  tenant  had  nothing 
but  a  reversionary  interest  after  the  discharge  of  the  receiver. 
Marsh  V.  Masterson,  15  Daly  114,  3  Supp.  414.  On  reversal  of  a 
final  order  which  awarded  petitioner  possession  of  the  premises,  it 
appeared  that  the  premises  were  in  the  possession  of  the  defendant 
for  a  term  not  yet  expired,  and  it  was  held  that  restitution  could 
not  be  awarded  under  the  provisions  authorizing  an  appellate 
court  to  compel  restitution  of  property  or  a  right  lost  by  an  er- 
roneous judgment  or  order,  "but  not  so  as  to  affect  title  to  the 
transfer  in  good  faith  and  for  value."  Carter  v.  Anderson,  13 
Supp.  332. 


CHAPTER  XIV. 

CIVIL  CONTEMPT.* 

PAGE. 

Article  i.   Power  of  courts.     Civil    and    criminal    contempts 

distinguished 572 

2.  What  is  civil  contempt  ;  how  punishable.    §§  2266, 

2292,  14,  15,  16,  1 24 1,  2457,  2555 578 

3.  When  punishment  summarily.      §§  2267,  2268 602 

4.  Manner  of  commencing  proceeding.      §§  2269-2279, 

inclusive 605 

5.  Interrogatories  and  proofs.      §  2280 619 

6.  The  punishment.     §§  2281-2286 623 

7.  Miscellaneous  provisions.      §§  2287-2291..., 644 

8.  Appeal 648 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SEC.                                                                                                                                                                                                                 ART.  PAGE. 

14.  Contempts  ;  punishable  civilly 2  579 

15.  No  punishment  for  non-payment  of  interlocutory  costs 2  580 

16.  Id. ;  money  due  upon  a  contract 2  580 

1241.  When  a  judgment  may  be  enforced  by  punishment  for  disobey- 
ing it 2  595 

2266.  Cases  to  which  this  title  applies 2  578 

2267.  When  punishment  may  be  summary 3  602 

2268.  When  warrant  to  commit  may  issue  without  notice 3  602 

2269.  Order  to  show  cause  or  warrant  to  attach  offender 4      607,  613 

2270.  Notice  to  delinquent  officer  to  show  cause 4  607 

2271.  Order  or  warrant ;  when  granted  out  of  court 4  605 

2272.  Id.;  when  contempt  was  committed  before  a  referee 4  606 

2273.  Effect  of  order  to  show  cause,  and  of  warrant 4  607 

2274.  Copy  affidavit,  etc.,  to  be  served  with  warrant 4  613 

2275.  Indorsement  upon  warrant 4  614 

2276.  Warrant ;  how  executed 4  614 

2277.  Undertaking  to  procure  discharge 4  614 

2278.  When  habeas  corpus  may  issue 4  613 

2279.  Sheriff  to  file  undertaking  with  return 4  614 

2280.  Interrogatories  and  proofs 5  619 

2281.  When  and  how  accused  to  be  punished 6  623 

2282.  Id. ;  upon  return  of  habeas  corpus 6  623 

2283.  Id. ;  upon  return  of  order  to  show  cause 6  623 

2284.  Amount  of  fine 6  623 

2285.  Length  of  imprisonment 6  624 

2286.  When  court  may  release  offender 6  624 

2287.  Offender  liable  to  indictment 7  644 

*  This  subject  is  treated  in  an   English  work,  Oswald  on  Contempt,  and  also  in 
Rapalje  on  Contempt. 

571 


572  CIVIL   CONTEMPT. 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

SEC.  ART.       PAGE. 

2288.  Proceedings  when  accused  does  not  appear 7  645 

2289.  Undertaking  ;  when  prosecuted  by  person  aggrieved 7  645 

2290.  Id. ;  by  attorney-general,  etc 7  645 

2291.  Sheriff  liable  for  taking  insufficient  sureties 7  645 

2292.  Punishment  of  misconduct  at  trial  term 2  579 

2457.  Disobedience  to  order  ;  how  punished 2  598 

2555.  Enforcement  of  decree  ;  by  punishment  for  contempt 2  598 

ARTICLE  I. 

Power  of  the  Court.    Civil  and  Criminal  Contempt 
Distinguished. 

Proceedings  to  punish  for  contempt  are  of  two  kinds,  each 
having  a  distinct  object  in  view,  the  one  to  protect  the  rights  of 
private  parties,  the  other  to  protect  the  dignity  of  the  court  and 
to  punish  persons  guilty  of  wilful  disobedience  of  the  mandates. 
In  the  former  case  the  purpose  being  to  preserve  private  rights, 
it  is  immaterial  whether  the  contempt  was  designedly  or  negli- 
gently committed,  the  power  and  duty  of  the  court  to  redress  the 
wrongs  of  the  injured  party  are  the  same.  If,  for  instance,  a 
person  transfer  property  or  do  any  other  act  in  disobedience  of 
an  injunction  or  other  order,  it  can  make  no  difference  to  the  in- 
jured suitor  whether  it  was  done  innocently  or  with  evil  intent. 
His  loss  is  the  same  in  either  event,  and  proceedings  to  punish 
the  offender  with  a  view  to  adjusting  the  rights  of  the  parties 
would  look  to  indemnity  only.  Of  course,  if  the  disobedience 
was  wilful,  the  court  could,  at  the  same  time  that  it  enforced  in- 
demnity, inflict  punishment  for  a  criminal  contempt ;  on  the 
other  hand,  if  the  only  purpose  of  the  proceedings  is  to  punish 
the  prisoner  and  maintain  the  dignity  of  the  court,  the  disobedi- 
ence must  be  designed  and  wilful,  and  hence  the  law  terms  this 
a  criminal  contempt.  If,  for  example,  one  after  examination 
wrongfully  interpret  and  through  this  mistake  disobey  an  order, 
the  majesty  of  the  law  is  not  offended  and  the  dignity  of  the 
court  is  not  impaired,  and  as  he  is  innocent  of  wilful  offence,  the 
inflection  of  punishment  could  have  no  justification.  The  wil- 
ful disobedience  referred  to  in  the  statute  relating  to  criminal 
contempts  means  conduct  intentionally  and  designedly  at  vari- 
ance with  the  mandate  of  the  court.  The  disobedience  need  not 
be  malicious,  but  it  must  be  in  pursuance  of  an  intent  to  disre- 
gard  the    mandate  of  the  violated    order.     People  v.  Aitken,  19 


CIVIL   CONTEM  573 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

Hun,  327,  cited,  Boon  v.  McGucketi,  6j  Hun,  251.  The  con- 
tempt must  be  such  as  to  defeat,  impede,  or  impair  a  right  or 
remedy  to  be  punishable.  Sandford  v.  Sandford,  2  State  Rep. 
133  ;  but  the  rule  is  otherwise  as  to  a  criminal  contempt,  and  a 
guilty  party  may  be  punished  without  proof  that  the  adverse 
party  has  been  injured;  Stiibbs  v.  Ripley,  39  Hun,  626,  appeal 
dismissed,  102  N.  Y.  734.  The  distinction  between  civil  and 
criminal  contempts  is  given.  Matter  of  Watson,  3  Lans.  408  ; 
People  V.  Cotvles,  4  Keyes,  46  ;  Hawley  v.  Bennett,  4  Paige,  163  ; 
People  V.  Spaiilding,  10  id.  284;  People  v.  Hackley,  24  N.  Y.  74; 
People  V.  Rest  ell,  3  Hill,  289;  People  ex  rel.  Mnnsellv.  Oyer  and 
Terminer  of  New  York,  loi  N.  Y.  245.  The  class  of  contempts 
intended  to  be  punished  under  the  provisions  of  this  article  does 
not  include  criminal  contempts,  and  the  codifiers  say  that  they 
have  "  deemed  it  inexpedient  to  embody  the  practice  relating  to 
criminal  contempts  in  this  statute,  not  only  because  such  a 
course  would  be  inconsistent  with  the  rules  laid  down  by  us  for 
our  guidance  in  this  revision,  but  also  because  we  deem  it  inex- 
pedient to  restrict  the  courts  by  statutor)'  provisions  to  a  pre- 
scribed mode  of  procedure,  in  a  matter  so  important  and  admit- 
ting of  such  a  variety  of  circumstances  with  respect  to  the  nature 
of  the  offence  and  the  most  appropriate  method  of  punishment, 
as  the  proceedings  necessary  for  the  preservation  of  their  power 
and  dignity." 

Contempt  is  disorderly,  contemptuous,  or  insolent  language  or 
behavior  in  the  presence  of  a  legislative  or  judicial  body,  tend- 
ing to  disturb  its  proceedings,  or  impair  the  respect  due  to  its 
authority,  or  a  disobedience  to  the  rules  or  orders  of  such  a  body, 
which  interferes  with  the  due  administration  of  law.  Amer.  & 
Eng.  Ency.  of  Law,  ist  edit.,  vol.  3,  p.  J'J'J,  citing  Anderson  v. 
Dunn,  6  Wheaton  (U.S.)  204;  Biirdett  v.  Abbott,  14  East,  i  ; 
Wharton's  Crim.  Law,  §  3426.  It  is  said  in  Matter  of  Yates,  4 
Johnson,  338,  that,  "  It  is  undoubtedly  essential  to  the  due  admin- 
istration of  justice  that  all  courts  should  have  power  sufificient 
to  enforce  obedience  to  their  own  orders  ;  hence  the  necessity  of 
authorizing  them  to  punish  contempts,  a  power  resulting  from  the 
first  principles  of  judicial  establishments,  in  the  constitutional 
exercise  of  which  they  ought  to  be  protected."  In  Yates  v. 
Lansing,  9  Johnson,  394,  at  page  416,  the  following  language  is 
found  in  the  opinion  of  a  member  of  the  court  :  "  The  right  of 


574  CIVIL   CONTEMPT. 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

punishing  for  contempts  by  summary  conviction,  is  inherent  in 
all  courts  of  justice  and  legislative  assemblies,  and  is  essential  for 
their  protection  and  existence.  It  is  a  branch  of  the  common 
law,  adopted  and  sanctioned  by  our  State  constitution.  The 
discretion  involved  in  this  power  is,  in  a  great  measure,  arbitrary 
and  undefinable  ;  and  yet  the  experience  of  ages  has  demon- 
strated that  it  is  perfectly  compatible  with  civil  liberty,  and 
auxiliary  to  the  purest  ends  of  justice." 

The  known  existence  of  such  a  power  prevents,  in  a  thousand 
instances,  the  necessity  of  exerting  it  ;  and  its  obvious  liability 
to  abuse  is,  perhaps,  a  strong  reason  why  it  is  so  seldom  abused. 
This  power  extends  not  only  to  acts  which  directly  and  openly 
insult,  or  resist  the  powers  of  the  court,  or  the  persons  of  the 
judges,  but  to  consequential,  indirect,  and  constructive  contempts, 
which  obstruct  the  process,  degrade  the  authority,  or  contaminate 
the  purity  of  the  court.     4  Bl.  Com.  280,  2  Hawk.  b.  2,  c.  22, 

1  Com.  Dig.  Attachment,  A.  The  officers  of  the  court  are  pecul- 
iarly subject  to  its  discretionary  powers,  and  may  be  punished  in 
this  summary  manner,  for  oppression,  extortion,  negligence,  or 
abuse  in  their  official  capacity,     i   Bac.   Abr.   tit.   Attachment, 

2  Hawk.  tit.  Attachment,  3  Atk.  563.  A  contempt  is  an  offence 
against  the  conrt,  as  an  organ  of  public  justice,  and  the  court  can 
rightfully  punish  it  on  summary  conviction,  whether  the  same 
act  be  punishable  as  a  crime  or  misdemeanor,  *or  indictment,  or 
not.  To  challenge  a  senator  or  a  judge  may,  under  circumstances, 
be  a  contempt,  but  is  certainly  indictable.  A  conviction  on 
indictment  will  not  purge  the  contempt,  nor  will  a  conviction  for 
a  contempt  be  a  bar  to  an  indictment.  The  offence  may  be 
double ;  and  so  are  the  remedy  and  the  punishment.  For 
instance,  assaults  in  the  presence  of  the  court,  rescues,  extortion, 
libels  upon  the  court  or  its  suitors  relating  to  suits  pending, 
forging  a  writ,  etc.,  are  indictable  offences,  and  certainly  they 
are  also  contempts.  The  right  of  every  superior  court  of  record 
to  punish  for  contempt  of  its  authority  or  process  is  inherent 
from  the  very  nature  of  its  organization,  and  essential  to  its 
existence  and  protection,  and  to  the  due  administration  of 
justice.  The  courts  of  justice  of  the  United  States  are  vested  by 
the  express  statute  provision  with  power  to  fine  and  imprison 
for  contempt.  Anderson  v.  Dunn,  6  Whcaton,  204.  See,  also, 
Ex  parte  Karney,  7  Wheaton,  38.    To  fine  for  contempt,  imprison 


CIVIL   CONTEMPT.  575 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

for  contumacy,  enforcing  the  observances  of  order,  etc.,  are 
powers  which  cannot  be  dispensed  with  in  the  court,  because 
they  are  necessary  to  the  exercise  of  all  others.  United  States 
V.  Hudson,  7  Cranch,  32.  A  very  considerable  degree  of  con- 
fusion has  arisen  with  regard  to  the  different  kinds  of  contempt 
punishable  by  the  court,  and  the  methods  of  punishment. 
Blackstone  says  :  "  Contempts  that  are  thus  punished  are  either 
direct,  which  openly  insult  or  resist  the  powers  of  the  court,  or 
the  person  of  the  judges  who  preside  there,  or  else  are  conse- 
quential, which,  without  such  coarse  insolence  or  direct  opposi- 
tion, plainly  tend  to  create  a  universal  disregard  of  their 
authority."     4  Black.  Com.  283. 

As  to  what  constitutes  what  is  known  as  a  criminal  contempt, 
on  the  one  hand,  and  a  civil  contempt  upon  the  other,  has  been 
the  cause  of  very  much  discussion  in  the  opinions  of  the  courts, 
and  different  rules  are  laid  down  as  to  what  constitutes  criminal 
contempt,  or  civil  contempt,  as  well  as  different  methods  adopted 
for  their  punishment.  Criminal  contempts  are  considered  in 
§§  8  to  13  of  the  Code  Civ.  Proc,  inclusive,  and  §  143  of  the 
Penal  Code  ;  While  civil  contempts  are  treated,  §§  14,  15,  16,  of 
the  Code,  and  the  procedure  of  enforcing  punishment  thereof, 
§§  2266-2292.  As  will  be  noted  in  further  consideration  of  the 
subject,  different  procedure  is  had  where  the  contempt  is  com- 
mitted in  view  of  the  court  from  that  which  is  to  be  followed 
where  the  contempt  was  not  in  the  direct  presence  of  the  court. 
The  distinction  as  between  a  civil  and  criminal  contempt  is  shown 
in  People  v.  Cowles,  4  Keyes,  38.  Woodruff,  J.,  in  the  opinion  of 
the  court,  says  :  "  The  distinction  between  a  commitment  upon 
a  precept  issued  for  the  disobedience  of  an  order  for  the  pay- 
ment of  a  sum  of  money  and  a  commitment  upon  a  conviction 
of  misconduct,  punishable  by  fine  and  imprisonment,  is  very 
clearly  indicated  by  the  statute,  and  has  been  repeatedly  declared 
by  the  courts.  The  proceedings  are  unlike,  and  the  decision  and 
penalties  imposed  are  different."  The  distinction  is  plainly  put 
in  the  further  language  of  the  court  :  "  The  process  in  the 
former  case  (civil  contempt)  is  strictly  and  purely  remedial; 
in  the  latter  (criminal  contempt)  it  is  punitive,  and  in  most 
instances  purely  so."  A  criminal  contempt  is  one  which  tends 
to  bring  the  administration  of  justice  into  disrepute,  and  where 
the  guilty   party  is  punished  with  a  view  to  maintaining  the 


576  CIVIL   CONTEMPT. 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

dignity  of  the  court.  A  civil  contempt  is,  and  can  be  used  only, 
for  the  protection  of  individual  rights,  and  for  preventing  a  dis- 
obedience of  the  process  of  the  court  to  the  injury  of  a  party  to 
the  proceeding.  In  People  ex  rel.  Negus  v.  Divyer,  90  N.  Y.,  at 
page  406,  Finch,  J.,  makes  the  same  distinction  :  "  The  Revised 
Statutes  distinguished  and  the  Civil  Code  preserves  the  distinc- 
tion between  criminal  contempts  and  proceedings  as  for  con- 
tempt in  civil  cases."  As  respects  disobedience  to  the  orders  of 
the  court,  the  sole  difference  appears  to  be  that  a  wilful  disobe- 
dience is  a  criminal  contempt,  while  a  mere  disobedience,  by 
which  the  right  of  a  party  to  an  action  is  defeated  or  hindered, 
is  considered  otherwise. 

The  matter  is  very  fully  treated  in   People   ex   rel.  Munsell  v. 
Court  of  Oyer  and  Terminer  in  the  City  of  New    York,    10 1  N.  Y. 
245,  in  which  Judge  Finch  says,  referring  to  civil  contempt  (page 
248,  opinion)  :  "  If,  in  this  class  of  cases,  there   exist  traces  of  a 
vindication  of  public  authority,  they  are   but    faint    and    utterly 
lost  in  the  characteristic,  which  is  strongly  predominant,  of  pro- 
tection to  private  rights  imperilled  or  indemnity  for  such   rights 
defeated."     At  pages  247  and  248,  Judge  Finch  defines  the  dif- 
ferent kinds  of  contempt  as  follows  :  "  In  one  class  are   grouped 
<:ases  whose  occasion  is  an  injury   or  wrong  done   to   the    party 
who  is  a  suitor  before  the  court,  and  has  established  a  claim  upon 
its  protection,  and  which  result  in    a   money    indemnity   to  the 
litigant,  or  a  compulsory  act  or  omission  enforced  for  his  benefit. 
In  these  cases  the  authority  of  the  court  is  indeed  vindicated,  but 
it  is,  after  a  manner,  lent  to  the  suitor  for  his  safety  and  vindi- 
cated for  his  sole  benefit.     The  authority  is  exerted  in  his  behalf 
as  a  private  indi^iidual,  and  the  fine  imposed  is  measured  by  his 
loss  and  goes  to  him  as  indemnity  ;  and  imprisonment,  if  ordered, 
is  awarded,  not   as  a  punishment,  but  as  a  means  to  an  end,  and 
that  end  the  benefit  of  the  suitor  in  some  act  or  omission  com- 
pelled which  are  essential  to  his  particular  rights  of  person  or  of 
property.     This  clearly  appears  from  the  mode  of  enforcing  the 
suitor's  remedy  prescribed  by  the  statute."     Code  of  Civ.  Proc. 
§§  2284,  2285.     A  fine  may  be  imposed  to  indemnify  his   actual 
loss.     Where   such    is    not   shown,   the    fine   must     not     exceed 
his  costs  and  expenses  and  $250  in  addition  thereto,  and  in  both 
cases    be  paid   over   to   the  suitor.     Further,   page    248  :  "  The    - 
second  class  of  contempts  consists  of  those    whose   cause  and 


CIVIL   CONTEMPT.  5/7 


Art.   I.     Power  of  the  Court.     Civil  and  Criminal  Contempt  Distinguished. 

result  are  in  violation  of  the  rights  of  the  public,  as  represented  by 
their  constituted  legal  tribunals,  and  a  punishment  for  the  wrong  in 
the  interest  of  public  justice,  and  not  in  the  interest  of  an  individual 
litigant.  In  these  cases,  if  a  fine  is  imposed,  its  maximum  is 
limited  by  a  fixed  general  law,  and  not  at  all  by  the  needs  of 
individuals  ;  and  its  proceeds  when  collected  go  into  the  public 
treasury  and  not  into  the  purse  of  an  individual  suitor.  The 
fine  is  punishment  rather  than  indemnity,  and  if  imprisonment 
is  added,  it  is  in  the  interest  of  public  justice  and  purely  as  a 
penalty,  and  not  at  all  as  a  means  of  securing  indemnity  to  an 
individual.  Necessarily  these  contempts  in  their  origin  and 
punishment  partake  of  the  nature  of  crimes  which  are  violations 
of  the  public  law  and  end  in  the  vindication  of  public  justice, 
and  hence  are  named  criminal  contempts.  As  described  in  the 
statute,  an  element  of  wilfulness  or  of  evil  intention  enters  into 
and  characterizes  them.  They  are  a  disturbance  of  the  court 
which  interferes  with  its  performance  of  duty  as  a  judicial  trib- 
unal :  wilful  disobedience  to  its  lawful  mandate  ;  resistance  to 
such  mandate  wilfully  offered  ;  contumacious  and  unlawful  refusal 
to  be  sworn  as  witness,  or  to  answer  a  proper  question,  and  pub- 
lication of  a  false  and  grossly  inaccurate  report  of  its  proceed- 
ings. These  cases  and  their  punishment  are  placed  under  the 
head  of  '  general  powers  of  the  courts  and  their  attributes,'  and 
they  very  evidently  relate  to  public  offences  tending  to  cast  dis- 
credit upon  the  administration  of  public  justice,  and  having  no 
reference  to  the  particular  rights  of  suitors.  But  here  again  we 
find  that  they  occur  as  well  in  civil  as  in  criminal  actions,  and 
so,  for  convenience,  we  may  speak  of  them,  in  view  of  the  present 
classification,  as  public  contempts,  although  the  established  legal 
nomenclature  must  remain  unchanged."  Referring  to  this 
decision,  in  King  v.  Barnes,  113  N.  Y.  476,  at  p.  480,  Judge 
Finch,  again  speaking  for  the  court,  says:  "It  is  true,  as  we 
have  elsewhere  said,  that  the  main  line  of  distinction  between 
the  criminal  and  civil  contempts  is  that  the  one»  is  an  offence 
against  public  justice,  the  penalty  for  which  is  essentially  puni- 
tive, while  the  other  is  an  invasion  of  private  right,  the  penalty 
for  which  is  redress  or  compensation  to  the  suitor.  But  we 
also  pointed  out  this  distinction,  while  marked  and  obvious, 
was  not  complete  and  perfect,  since  behind  criminal  contempts 
often  stood  some  trace  of  private  rights,  and  in  civil  contempts 
37 


578  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 


was  occasionally  to  be  found  the  element  of  punishment  merely 
as  distinguished  from  the  bare  enforcement  of  a  remedy."  In 
civil  contempts  it  is  essential  to  sustain  a  conviction  that  there 
shall  exist  not  only  jurisdiction  in  the  court  or  officer  granting 
the  order  which  has  been  disobeyed,  but  also  a  valid  cause  of 
action  in  the  aggrieved  party,  and  this  results  from  the  fact  that 
the  civil  contempt  is  not  an  offence  against  the  dignity  of  the 
court,  but  against  the  party  in  whose  behalf  the  mandate  of  the 
court  has  been  issued,  and  a  fine  is  imposed  solely  as  indemnity 
to  the  injured  party.  It  is  otherwise  in  case  of  criminal  con- 
tempt that  is  of  a  public  character  and  indictable  ;  it  is  directed 
against  the  dignity  and  authority  of  the  court  alone.  So  in  pro- 
ceedings to  prosecute  such  an  act  the  court  will  look  only  to  the 
question  of  power,  and  if  there  were  question  of  the  power  to 
grant  the  order,  it  will  impose  punishment  upon  those  who  wil- 
fully disobey  it,  for  the  purpose  of  vindicating  its  own  power 
and  maintaining  its  own  dignity.  Criminal  contempts  consist  in 
a  violation  of  the  rights  of  the  public  as  represented  in  their 
judicial  tribunals.  An  element  of  wilfulness  exists  in  them,  and 
they  are  punished  in  the  interest  of  public  justice,  and  not  of 
individual  litigants.  Civil  contempts  need  not  be  wilful,  and  they 
are  punished  by  a  fine  to  the  individual  litigant  as  an  indemnity 
for  his  loss.  Conviction  of  a  civil  contempt  involves  a  judicial 
determination  that  the  party's  rights  or  remedies  have  been  de- 
feated or  impaired  by  the  contempt.  People  ex  rel.  Gaynor  v. 
McKane,  78  Hun,  154. 

ARTICLE    II. 

What  is  Civil  Contempt  ;  How  Punishable.    §§  2266, 2292, 
14,  15,  16,  1241,  2457,  2555. 

Sub.    I.    CTVTL  CONTEMPTS  GENERAI.l.Y.      §§  I4,   1 5,  16,  2266,    2292. 

2.  How  JUDGMENT  ENFORCED  BY  CONTEMPT   PROCEEDINGS.      §  I24I. 

3.  Contempts  in  supplementary  proceedings.    §  2457. 

4.  Contempt  proceedings  to  enforce  surrogate's  decrees.    §  2555. 

Sub.   1.  Civil  Contempts  Generally.     §§14,15,16,2266,2292. 

§  2266.  Cases  to  which  this  title  applies. 

in  a  ca.se  specified  in  §  14  of  this  act,  or  in  any  other  case  where  it  is  specially  pre- 
scribed by  law,  that  a  court  of  record,  or  a  judge  thereof,  or  a  referee  appointed  by 
the  court,  has  power  to  punish,  by  fine  and  imprisonment,  or  either,  or  generally  as  a 


CIVIL  CONTEMPT.  579 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

contempt,  a  neglect  or  violation  of  duty,  or  other  misconduct ;  and  a  right  or  remedy 
of  a  party  to  a  civil  action  or  special  proceeding  pending  in   the  court,  or  before  the 
judge  or  the  referee,  may  be  defeated,  impaired,  impeded,  or  prejudiced   thereby,  the 
offence  must  be  punished  as  prescribed  in  this  title. 
See  §  870. 

§  2292.    [Am'd,  1895.]    Punishment  of  misconduct  at  trial  term. 

Where  a  misconduct,  which  is  punishable  by  fine  or  imprisonment,  as  prescribed  in 
this  title,  occurs  at  a  trial  term,  or  with  respect  to  a  mandate  returnable  at  such  term, 
and  was  not  punished  at  the  term  at  which  it  occurred  ;  the  Supreme  Court  may  inquire 
into  and  punish  the  misconduct,  as  if  it  had  occurred  at  a  Special  Term  of  the  Supreme 
Court,  held  in  the  same  county,  or  with  respect  to  a  mandate  returnable  at  such  a 
Special  Term. 

2  R.  S.  §  33;  L.  1895,  ch.  946. 

§  14.  Contempts  punishable  civilly. 

A  court  of  record  has  power  to  punish,  by  fine  and  imprisonment,  or  either,  a  neglect 
or  violation  of  duty,  or  other  misconduct,  by  which  a  right  or  remedy  of  a  party  to  a 
civil  action  or  special  proceeding,  pending  in  the  court  may  be  defeated,  impaired,  im- 
peded, or  prejudiced,  in  either  of  the  following  cases  : 

1.  An  attorney,  counsellor,  clerk,  sheriff,  coroner,  or  other  person,  in  any  manner 
duly  selected  or  appointed  to  perform  a  judicial  or  ministerial  service,  for  a  misbe- 
havior in  his  office  or  trust,  or  for  a  wilful  neglect  or  violation  of  duty  therein  ;  or  for 
disobedience  to  a  lawful  mandate  of  the  court,  or  of  a  judge  thereof,  or  of  an  officer 
authorized  to  perform  the  duties  of  such  a  judge. 

2.  A  party  to  the  action  or  special  proceeding,  for  putting  in  fictitious  bail  or  a 
fictitious  surety,  or  for  any  deceit  or  abuse  of  a  mandate  or  proceeding  of  the  court. 

3.  A  party  to  the  action  or  special  proceeding,  an  attorney,  counsellor,  or  other  per- 
son, for  the  non-payment  of  a  sum  of  money,  ordered  or  adjudged  by  the  court  to  be 
paid,  in  a  case  where  by  law  execution  cannot  be  awarded  for  the  collection  of  such 
sum  ;  or  for  any  other  disobedience  to  a  lawful  mandate  of  the  court. 

4.  A  person,  for  assuming  to  be  an  attorney  or  counsellor,  or  other  officer  of  the 
court,  and  acting  as  such  without  authority ;  for  rescuing  any  property  or  person  in 
the  custody  of  an  officer,  by  virtue  of  a  mandate  of  the  court ;  for  unlawfully  detain- 
ing, or  fraudulently  and  wilfully  preventing,  or  disabling  from  attending  or  testifying, 
a  witness,  or  a  party  to  the  action  or  special  proceeding,  while  going  to,  remaining  at, 
or  returning  from,  the  sitting  where  it  is  noticed  for  trial  or  hearing ;  and  for  any 
other  unlawful  interference  with  the  proceedings  therein. 

5.  A  person  subpoenaed  as  a  witness,  for  refusing  or  neglecting  to  obey  the  sub- 
poena, or  to  attend,  or  to  be  sworn,  or  to  answer  as  a  witness. 

6.  A  person  duly  notified  to  attend  as  a  juror,  at  a  term  of  the  court,  for  improperly 
conversing  with  a  party  to  an  action  or  special  proceeding,  to  be  tried  at  that  term,  o\ 
wHth  any  other  person,  in  relation  to  the  merits  of  that  action  or  special  proceeding ; 
or  for  receiving  a  communication  from  any  person,  in  relation  to  the  merits  of  such 
an  action  or  special  proceeding,  without  immediately  disclosing  the  same  to  the 
court. 

7.  An  inferior  magistrate,  or  a  judge  or  other  officer  of  an  inferior  court,  for  pro- 
ceeding, contrary  to  law,  in  a  cause  or  matter,  which  has  been  removed  from  his  juris- 
diction to  the  court  inflicting  the  punishment ;  or  for  disobedience  to  a  lawful  order 
or  other  mandate  of  the  latter  court. 

8.  In  any  other  case,  where  an  attachment,  or  any  other  proceeding  to  punish  for  a 
contempt,  has  been  usually  adopted  and  practised  in  a  court  of  record,  to  enforce  a 


58o  CIVIL   CONTEMPT. 


Art.  2.     What  is  Civil  Contempt  ;  How  Punishable. 


civil  remedy  of  a  party  to  an  action  or  special  proceeding  in  that  court,  or  to  protect 
the  right  of  a  party. 

2  R.  S.  534,  part  3,  ch.  8,  tit.  13,  §  i  (3  R-  S.,  5th  ed.,  849;  2  Edm.  552). 

§  15.  [Am'd,  1877.]  No  punistiment  for  non-payment  of  inter- 
locutory costs. 

But  a  person  shall  not  be  arrested  or  imprisoned,  for  the  non-payment  of  costs, 
awarded  otherwise  than  by  a  final  judgment,  or  a  final  order,  made  in  a  special  pro- 
ceeding instituted  by  State  writ,  except  where  an  attorney,  counsellor,  or  other  officer 
of  the  court,  is  ordered  to  pay  costs  for  misconduct  as  such,  or  a  witness  is  ordered  to 
pay  costs  on  an  attachment  for  non-attendance. 

L.  1S47,  ch.  390,  §  2  (3  R.  S.,  5th  ed.,  126;  4  Edm.  630). 

§  16.  Id. ;  money  due  upon  a  contract. 

Except  in  a  case  where  it  is  otherwise  specially  prescribed  by  law,  a  person  shall 
not  be  arrested  or  imprisoned  for  disobedience  to  a  judgment  or  order,  requiring  the 
payment  of  money  due  upon  a  contract,  express  or  implied,  or  as  damages  for  non- 
performance of  a  contract. 

L.  1S31,  ch.  360,  §  I  (3  R.  S.,  5th  ed.,  126;  4  Edm.  465),  am'd. 

The  work  undertaken  by  the  codifier.s  in  this  chapter  is  a  revi- 
sion of  a  portion  of  part  3,  chapter  8,  title  13,  of  the  Revised 
Statutes,  relating  to  the  contempts  which  infringe  upon  the 
rights  or  remedies  of  the  parties,  and  are  punishable  at  his  in- 
stance and  particularly  with  a  view  to  his  compensation. 

The  right  of  a  court  of  record  to  punish  contempts  is  a  com- 
mon-law right,  and  a  necessary  incident  to  the  powers  of  the 
court.  This  is  specially  true  of  contempts  committed  in  the 
presence  of  the  court,  and  corporations,  as  well  as  individuals,  are 
within  the  scope  of  its  powers.  People  v.  Sturtevant,  9  N.  Y. 
263  ;  People  v.  Phelps,  4  T.  &  C.  467  ;  SpaiiMing  v.  People,  7 
Hill,  301  ;  Wicker  v.  Dresser,  13  How.  331  ;  Yates  v.  Lansing,  9 
Johns.  395  ;  People  v.  Albany,  etc.,  R.  R.  Co.,  12  Abb.  171  ;  Hillis 
v.Peekskill  Savings  Bank,  18  Week.  Dig.  287.  The  power  to 
punish  for  contempt  is,  however,  an  exception  to  the  provisions 
of  the  Constitution  in  favor  of  personal  liberty,  and  cannot  be 
extended  in  the  least  degree  beyond  the  limits  imposed  by 
statute.  Rutherford  v.  Holmes,  5  Hun,  317,  afihrmed,  66  N.  Y. 
368;  People  w.  Riley,  25  Hun,  588.  This  summary  right  of  the 
courts  under  the  common  law  to  punish  a  delinquent  officer  for 
disobedience  to  its  lawful  order  has  not  been  restricted  by 
statute.  Clark  v.  Bininger,  /^^  N.  Y.  Super.  126,  affirmed,  75 
N.  Y.  344;  People  v.  Duyer,  63  How.  ii  5  ;  Stevenson  v.  Hanson, 
67  id.  305.  The  inferior  courts  have  power  at  common  lav/  to 
protect  their  proceedings  from  disorder,  to  order  the  arrest  and 


CIVIL   CONTEMPT.  58 1 


Art.  2.     What  is  Civil  Contempt ;  How  Punishable. 


removal  of  disorderly  persons,  etc.,  and  such  order  exonerates 
the  person  executing  it  from  Hability  for  false  imprisonment. 
Matter  of  Watson,  3  Lans.  408.  The  operation  of  §  14  is, 
however,  specifically  confined  to  "a  court  of  record,  or  a  judge 
thereof,  or  a  referee  appointed  by  the  court."  A  judge  out  of 
court,  however,  has  no  power  to  punish  for  contempt  on  disobe- 
dience to  an  order  made  in  a  statutory  proceeding  before  him, 
unless  authority  so  to  punish  is  expressly  conferred  by  law. 
People  V.  Brennan,  45  Barb.  344.  This  contingency  is,  however. 
provided  for  by  this  section.  It  has  also  been  said  that,  on  the 
other  hand,  the  court  in  term  time  cannot  punish,  as  for  a  con- 
tempt, disobedience  of  an  order  made  by  a  judge  out  of  court, 
unless  the  order  is  made  in  an  action  pending  in  the  court. 
People  V.  Brennan,  supra.  But  in  Tremain  v.  Richardson,  68 
N.  Y.  617,  it  is  held  that  the  court  has  power  to  punish  for  a 
contempt  of  an  order  made  by  a  county  judge  in  supplementary 
proceedings  in  the  Supreme  Court.  The  right  to  process  to 
punish  for  contempt  is  within  the  discretion  of  the  court,  and 
will  not  be  exercised  where  there  is  another  adequate  remedy  on 
behalf  of  a  party,  nor  is  its  refusal  reviewable  by  appeal.  Troy 
&  B.  R.  R.  Co.  V.  Hoosac  Tunnel  R.  R.  Co.,  57  How.  181.  The 
tendency  of  the  courts  has  been  in  modern  times  to  restrict  the 
definitions  of  contempts  and  narrow  their  own  powers  in  respect 
to  them.  Berglis  Case,  16  Abb.  (N.  S.)  266  ;  People  v.  Jacobs,  66 
N.  Y.  8.  The  history  of  punishment  for  contempt  is  considered 
and  discussed  in  Dusenbery  v.  Woodward,  i  Abb.  443.  Disobe- 
dience to  a  lawful  order  of  a  court  or  judge  is  a  contempt,  and 
an  order  is  binding  until  reversed,  unless  void  for  want  of  juris- 
diction ;  but  if  erroneous  only,  that  fact  will  be  considered  in 
mitigation  of  the  punishment.  Hilton  v.  Pater  son,  18  Abb.  245  ; 
People  V.  Bergen,  53  N.  Y.  404;  Moat  v.  Halbein,  2  Edw.  Ch. 
188;  People  V.  Sturtevant,g  N.  Y.  263  ;  Sullivan  \.  Jiidah,  4 
Paige,  442  ;  Perry  v.  Mitchell,  5  Den.  537:  Erie  Raikvay  Com- 
pany V.  Ramsey,  45  N.  Y.  637  ;  Higbie  v.  Edgerton,  3  Paige,  253  ; 
People  V.  Spaulding,  2  id.  326  ;  Smith  v.  Reno,  6  How.  124. 

If  a  judgment  is  erroneous  the  remedy  is  to  move  to  modify. 
Park  V.Park,  80  N.  Y.  156.  That  an  injunction  is  too  broad,  and 
partially  beyond  the  jurisdiction  of  the  court,  is  no  excuse  as  to 
those  matters  as  to  which  the  court  has  jurisdiction.  A  tlantic&  Pa- 
cific Tel.  Co.  V.  B.  &  O.  R.  R.  Co.,  46  N.  Y.  Super.  377,  modified,  87 


582  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

N.  Y.  355.  But  violation  of  a  void  injunction  order  is  not  aeon- 
tempt.  People  V.  Edson,  52  N.  Y.  Super.  53.  Nor  is  it  an  excuse 
that  the  order  is  broader  than  the  prayer  of  the  complaint.  Mayor 
V.  N.  V.  &  S.  R.  R.  Co.,  64  N.  Y.  622,  afifirming  40  N.  Y.  Super. 
301.  Or  that  the  referee  before  whom  a  debtor  was  to  be  exam- 
ined was  hostile  to  him.  Tremain  v.  Richardson,  68  N.  Y.  617. 
Or  after  examination  that  the  afifidavit  on  which  the  proceed- 
ings were  based  was  informal.  LeJmiaier  v.  Griswold,  46  N.  Y. 
Super.  II.  An  appeal  from  the  order,  without  a  stay,  does  not 
justify  its  violation.  Stone  v.  Car/an,  2  Sandf.  738;  People  v. 
Bergen,  53  N.  Y.  404  ;  Lelandv.  Smith,  1 1  Abb.  (N.  S.)  231  ;  Troy 
&  B.  R.  R.  Co.  V.  B.  &  H.  R.  R.  Co.,  57  How.  181.  The  direction 
of  a  third  person  will  not  protect  a  party  from  punishment, 
though  it  may  bear  on  the  extent  of  the  punishment,  as  will  the 
advice  of  counsel.  Krom  v.  Hogan,  4  How.  225  ;  Matter  ofFitton, 
16  id.  303  ;  Erie  R.  R.  Co.  v.  Ramsey,  45  N.  Y.  637  ;  Hawley  v. 
Bennett,  4  Paige,  163;  Rogers  v.  Patterson,  id.  450;  Billings  v. 
Carver,  54  Barb.  40 ;  La7isiug  v.  Easton,  7  Paige,  364  ;  People  v. 
Conipton,  I  Duer,  512;  Taggard  y.Taleott,2  Edw.  Ch.  628;  Hilli- 
kerv.  Hathorn,  5  Bosw.  710.  The  submission  to  an  examination 
by  a  debtor,  after  violation,  is  a  mitigation  of  punishment.  Hil- 
ton V.  Patterson,  18  Abb.  245.  As  to  a  proper  excuse,  see  Smith 
v.  Drury,  22  Week.  Dig.  3.  It  has  been  intimated  that  the 
process  will  not  ordinarily  issue  to  collect  money  where  there  is  a 
fund  in  hand  out  of  which  payment  ought  to  be  made.  Matter 
of  Watson  v.  Nelson,  69  N.  Y.  536.  And  it  is  held  proper  only  in 
cases  where  the  moneys  cannot  be  collected  by  execution.  Baker 
V.  Baker,  23  Hun,  56;  People  v.  Riley,  25  id.  587;  GGara  v. 
Kearney,  yj  N.  Y.  423.  Where  the  failure  to  pay  is  from  inabil- 
ity, see  CocJiran  v.  Ingersol,  13  Hun,  368.  But  where  a  party  is 
unable  to  pay  over  the  moneys  by  reason  of  his  own  fault  it  is  no 
defence.  Lansing  v.  Lansing,  41  How.  248.  A  copy  of  the 
order  or  judgment  must  be  served.  Park  v.  Park,  80  N.  Y.  156. 
And  a  demand  must  be  made  for  payment  of  money  to  put  a 
party  in  contempt.  Grey  v.  Cook,  34  How.  432 ;  McComb  v. 
Weaver,  1 1  Hun,  271  ;  Fischer  v.  Raab,  81  N.  Y.  235.  And  by  the 
person  entitled  to  receive  it.  Panton  v.  Zebley,  19  How.  394; 
People  V.  King,  9  id.  97  ;  Tinkey  v.  Langdon,  60  id.  180.  Until 
service  of  a  copy  of  the  order  is  made  a  party  cannot  be  brought 
in  contempt  for  not  complying  with  its  direction.     Sandford  v. 


CIVIL   CONTEMPT.  583 


Art.   2.     What  is  Civil  Contempt ;  How  Puiiishable. 

Sandford,  2  State  Rep.  133;  Ale Cauley  v.  Palmer,  ^o  Hnn,  2,2). 
It  must  be  made  to  appear  that  the  act  or  omission  complained 
of  is  one  by  which  "  the  right  or  remedy  of  a  party  may  be 
defeated,  impaired,  impeded,  or  prejudiced,"  and  this  must  be 
adjudged  to  authorize  the  infliction  of  punishment.  Fischer  v. 
Raab,  81  N.  Y.  235.  To  punish  a  party  for  contempt  in  a  civil 
proceeding  the  contempt  must  be  such  as  to  defeat,  impair,  im- 
pede, or  prejudice  a  right  or  remedy  of  the  party  affected  by  it, 
and  that  fact  must  be  ascertained  and  adjudged  by  the  court 
directing  the  punishment  which  is  to  be  imposed.  Sandford  v. 
Sandford,  2  St.  Rep.  133;  Clearyv.  Christie,  ^i  Hun,  566.  In 
supplemental  proceedings  the  judge  has  power  to  punish  dis- 
obedience, and  this  power  does  not  oust  the  court  of  its  jurisdic- 
tion to  punish  for  the  contempt.  Matter  of  Smethurst,  3  Sandf. 
724;  Kearney's  Case,  13  Abb.  459.  Even  an  erroneous  order 
must  be  obeyed,  Wileox  v.  Harris,  59  How.  262.  It  was  held 
that  the  fact  that  the  debtor  is  a  laborer,  having  a  family  wholly 
supported  by  his  labor,  will  not  authorize  disobedience.  Newell 
V.  Cutler,  19  Hun,  74.  This  case  was,  however,  overruled.  Han- 
cockv.  Sears,  93  N.  Y.  79.  Where,  pending  the  proceedings,  the 
debtor  allows  a  fictitious  judgment  to  be  rendered  against  him, 
and  execution  to  be  levied  on  land  belonging  to  him  in  another 
State,  he  is  punishable  for  contempt.  Fermerw.  Sanborn,  ^y  Barb. 
610.  A  party  will  not  be  punished  for  refusing  to  pay  over 
money  or  deliver  property,  pursuant  to  an  order,  unless  the 
money  or  specific  property  was,  at  the  time  of  the  service  of  the 
order  for  the  examination,  in  his  possession  or  under  his  control. 
Tinker  v.  Crooks,  22  Hun,  579;  Potter  v.  Lozu,  16  How.  549; 
Gerregani  v.  WheelrigJit,  3  Abb.  (N.  S.)  264.  Repayment  of 
funds  received  by  a  party  to  an  action  for  a  partnership  account- 
ing from  a  receiver  therein  cannot,  upon  reversal  of  the  judgment 
under  which  it  was  paid,  be  recovered  back  by  proceedings  for 
contempt.  Schiilt e  v.  Anderson,  ^%'H.Y .^w^^qx.  X}^^.  An  assignee 
for  the  benefit  of  creditors  cannot,  like  a  receiver,  be  punished 
for  contempt  for  not  complying  with  an  order  to  pay  out  moneys 
in  his  hands.  Matter  of  Radtke,  16  Week.  Dig.  28.  An  order 
should  not  be  granted  for  the  arrest  and  imprisonment  of  a  party 
who  had  obtained  an  attachment  against  property  for  his  failure 
to  pay  the  sheriff's  charges,  as  fixed  by  an  order  vacating  the 
attachment.     Hall  v.  U.  S.  Reflector  Co.,  66  How.  31  ;  aeQ  Myers 


584  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

V.  Becker,  95  N.  Y.  486,  A  final  decree  on  an  accounting  by  a 
general  assignee  cannot  be  enforced  by  proceedings  for  contempt. 
Matter  of  Stockbridge,  7  Abb.  N.  C.  395. 

A  third  party  will  not  be  punished  for  refusing  to  comply 
with  an  order  that  he  turn  over  property  of  the  judgment  debtor 
in  his  hands  to  the  receiver;  the  receiver  must  bring  suit.  West 
Side  Bank  v.  Piigsley,  12  Abb.  (N.  S.)  28;  S.  C.  47  N.  Y.  368. 
Disobedience  to  an  injunction  order  will  be  punished  as  a  con- 
tempt, and  it  is  not  necessary  that  service  of  the  order  should 
have  been  made  if  the  person  violating  it  has  knowledge  it  has 
been  granted.  Mayor  v.  N.  Y.  &  S.  I.  Co.,  40  N.  Y.  Super.  300, 
affirmed,  64  N.  Y.  623  ;  People  v.  Brewer,  4  Paige,  405  ;  Neale  v. 
Osborne,  15  How.  81  ;  Wheeler  v.  Gilsey,  35  id.  139;  Atlatitic 
Tel.  Co.  V.  Baltimore,  etc.,  R.  R.  Co.,  4.6  N.  Y.  Super.  377  ;  Ewing 
V.  Johnson,  14.  How.  202;  Waffle  v.  Vanderheyden,'^  Paige,  45. 
But  damages  may  be  recovered  in  an  action  for  such  violation, 
or  proceedings  taken  for  contempt,  at  the  election  of  the  injured 
party.  Porous  Plaster  Co.  v.  Seabury,  4^  Hun,  611.  The  court 
will  not  countenance  any  evasion  of  the  injunction  order,  and 
will  punish  an  intentional  violation  of  its  fair  intent.  Mayor  v. 
N.  Y.  &  S.  I.  R.  R.  Co.,  64  N.  Y.  622  ;  Ogden  v.  Gibbons,  4  Johns. 
Ch.  174;  Devlin  v.  Devlin,  6g  N.  Y.  212;  Neale  v.  Osborne,  15 
How.  81  ;  Wheeler  \.  Gilsey,  35  id.  139.  Service  on  the  mayor 
of  a  city  or  president  of  a  corporation  binds  the  officers  of  each. 
People  V.  Sturtevant,  9  N.  Y.  263  ;  Rorke  v.  Russell,  2  Lans.  242. 
Officers  of  a  corporation  who  have  personal  knowledge  that  a 
corporation  is  enjoined,  and  nevertheless  violate  the  injunction, 
are  punishable.  Abcll  v.  N.  Y.,  etc..  R.  R.  Co.,  18  Week.  Dig. 
554;  People  v.  Albany,  etc.,  R.  R.  Co.,  12  Abb.  171.  But  the 
order  must  clearly  embrace  the  act  complained  of  to  entitle  the 
person  injured  to  process  for  contempt.  Germajt  Savings  Bank 
V.  Habel,  58  How.  336;  Kennedy  v.  Weed,  10  Abb.  62.  To  ren- 
der a  person  guilty  of  a  contempt  for  resisting  "  a  lawful  man- 
date of  a  court  of  record,"  the  mandate  must  have  been  issued 
by  a  court  and  not  by  a  justice  thereof.  People  v.  Gilmore,  26 
Hun,  I.  A  peremptory  mandamus  is  an  order  of  the  court. 
People  V.  R.  &  S.  L.  R.  R.  Co.,  76  N.  Y.  294  It  is  sufficient  ex- 
cuse when  an  act  has  been  directed  by  mandamus  to  show  that 
an  injunction  has  been  granted  restraining  the  same  act.  People 
V.  Village  of  West   Troy,  2^   Hun,  179.     Unless  the  order  directs 


CIVIL   CONTEMPT.  585 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

surrender  of  premises,  as  well  as  a  conveyance,  a  party  cannot 
be  punished  for  refusing  to  deliver  possession.  Tinkcy  v.  Lang- 
don,  60  How.  180  ;  McKclsey  v.  Lczvis,  3  Abb.  N.  C.  61.  A  per- 
son sued  by  a  wrong  name  will  not  be  punished  for  contempt 
for  failing  to  obey  an  order  if  he  has  not  appeared  in  the  action. 
Muldoon  v.  Pierz,  i  Abb.  N.  C.  309.  It  is  not  a  contempt  to  fail 
to  pay  costs  in  an  action  between  husband  and  wife,  as  costs 
are  collectible  by  execution.  Noland  v.  Noland,  29  Hun,  630  ; 
Jacquin  v.  Jacquin,  36  id.  378.  But  when  a  defendant  fails  to 
make  a  payment  of  alimony  he  is  liable  for  contempt.  It  is  not 
necessary  to  show  an  execution  returned  unsatisfied.  Ryckman  v. 
Rycknian,  34  Hun,  235,  affirmed,  98  N.  Y.  639.  The  rule  is 
changed  from  the  Revised  Statutes,  and  the  court  must  be  satis- 
fied that  payment  cannot  be  compelled  by  sequestration  or  re- 
quiring security  before  proceedings  can  be  taken  for  contempt. 
Isaacs  V.  Isaacs,  61  How.  369;  Rahlv.  Rahl,  14  Week.  Dig.  560. 
It  was  held  before  the  Code,  Matter  of  Clark,  20  Hun,  551,  ap- 
peal dismissed,  81  N.  Y.  638,  that  one  committed  for  non-pay- 
ment of  alimony  was  not  entitled  to  the  jail  liberties.  The  pay- 
ment of  alimony,  either  temporary  or  permanent,  and  of  the 
wife's  legal  expenses  in  an  action  for  divorce,  may  be  enforced 
by  proceedings  for  contempt,  but  the  husband  must  be  served 
with  a  certified  copy  of  the  decree  and  payment  of  the  alimony 
demanded  before  the  proceedings  can  be  had.  Strobridge  v. 
Strobridgc,  21  Hun,  288  ;  Ryckman  v.  Ryckman,  19  Week.  Dig. 
41  ;  Sandford  v.  Sandford,  2  State  Rep.  133.  Contra,  Gane  v. 
Gane,  45  N.  Y.  Super.  355.  To  bring  a  party  into  contempt, 
the  order  which  he  is  charged  with  violating  must  be  served 
personally  upon  him.  McCaiiley  v.  Palmer,  a^O  Hun,  38;  Loop 
V.  Gould,  17  id.  585  ;  Gerard  v.  Gerard,  2  Barb.  Ch.  73  :  People 
V.  Murphy,  i  Daly,  462.  It  is  no  answer  to  the  proceedings  for 
contempt  that  the  pecuniary  circumstances  of  the  defendant  are 
such  that  he  is  unable  to  comply  with  the  order.  Lansing  v. 
Lansing,  41  How.  248  ;  Strobridge  v.  Strobridge,  supra.  An  in- 
junction restraining  a  party  from  suing  executors  is  not  violated 
by  suing  heirs  at  law.  Dale  v.  Rosevelt,  i  Paige,  35.  After  serv- 
ice of  an  ordinary  injunction  in  a  creditor's  suit,  defendant  is 
not  guilty  of  contempt  in  proceeding  to  judgment  in  a  suit  al- 
ready commenced.     Parker  v.  Wakeman,  10  Paige,  485. 

An  injunction  obtained  by  a  partner,  preventing  other  partners 


586  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 


from  meddling  with  the  partnership  property,  will  not  prevent 
the  creditors  of  the  firm  from  proceeding  at  law  to  recover  their 
debts,  or  an  injunction  of  the  firm  from  confessing  a  judgment, 
so  as  to  give  a  creditor  a  preference.  McCrcdic  v.  Senior,  4 
Paige,  378.  An  attorney  having  two  clients,  if  one  is  enjoined, 
it  does  not  limit  his  professional  action  as  to  the  other  claiming 
different  rights  and  interests.  Slater  v.  Merritt,  75  N.  Y.  268. 
Among  the  acts  adjudged  to  be  contempts  are  the  taking  of 
property  from  an  ofificer  when  seized  on  mesne,  but  not  on 
final  process.  People  v.  Church,  2  Wend.  262.  Breaking  open 
parts  of  books  sealed  up  and  delivered  to  a  party  for  in- 
spection. Bias  V.  Merle,  2  Paige,  494.  Writing  an  insult- 
ing letter  to  a  grand  jury.  Berth's  Case,  16  Abb.  266.  Inter- 
fering with  property  in  the  possession  of  a  receiver.  Rig-gs  v. 
Whitftey,  15  Abb.  388;  Noe  v.  Gibson,  7  Paige,  513.  See  on  this 
point,  also,  Albany  City  Bank  v.  Schcnierhorn,  9  Paige,  372  ; 
Baker  v.  Browning,  8  id.  388  ;  Hilliker  v.  Hawthorne,  5  Bosw. 
710;  Sea  Ins.  Co.  v.  Stebbins,^  Paige,  565.  Procuring  an  insol- 
vent person  to  justify  as  bail.  Hall  v.  LPlatimer,  49  How.  500. 
Bringing  a  suit  against  a  lunatic  or  habitual  drunkard  after  no- 
tice of  injunction,  or  against  a  receiver.  L Amorenx  v.  Crosby, 
2  Paige,  422  ;  Riggs  v.  Whitney,  15  Abb.  388;  Noe  v.  Gibson,  7 
Paige,  513.  See  People  ex  rel.  Borst  v.  Grant,  41  Hun,  351. 
The  surrogate  has  power  to  punish  an  administrator  for  con- 
tempt because  of  his  failure  to  pay  the  amount  allowed  to  a 
special  guardian  by  a  decree,  and  an  allegation  of  inability  to  pay 
is  no  answer.  Matter  of  Kurtzman,  2  State  Rep.  655.  As  to 
when  surrogate  can  exercise  discretion.  Matter  of  Snyder,  2 
State  Rep.  758.  Sureties  wilfully  justifying  in  a  larger  sum 
than  they  are  worth  are  guilty  of  contempt.  Egan  v.  Hope,  49 
N.  Y.  Super.  454;  Stephenson  v.  Hanson,  6  Civ.  Pro.  43  ;  reversed 
on  appeal  on  ground  facts  did  not  justify  finding  of  falsity  of 
affidavit ;  22  Week.  Dig.  274  ;  Keating  v.  Goddard,  8  Civ.  Pro. 
377,  n./  Diamond  V.  Knoepfel,  3  State  Rep.  291.  But  contra, 
Simonv.  Aldine  Co.,  5  id.  906.  But  not  if  error  might  have  been 
made  by  supposing  demands  against  him  not  collectible.  Nathan 
V.  Hope,  5  Civ.  Pro.  401.  Refusal  to  answer  by  a  witness  is  not 
less  punishable  civilly  because  it  might  be  punished  criminally. 
Matter  of  Jones,  6  Civ.  Pro.  250.  But  although  a  witness  will  be 
compelled  to  answer,  he  will  not  be  obliged  to  sign  a  deposition 


CIVIL   CONTEMPT.  587 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

when  it  nii^ht  subject  him  to  legal  liability.  Marx  v.  Spaulding, 
6  State  Rep.  530.  It  seems  that  where  a  judgment  of  divorce 
prohibits  the  party  in  fault  from  marrying  again,  he  maybe  pun- 
ished for  contempt  for  disregarding  the  provision  by  afterward 
marrying  in  another  State.  Rycr  v.  Rycr,  67  How.  369.  A  sur- 
rogate has  no  jurisdiction  to  punish  for  contempt  in  not  comply- 
ing with  a  decree  directing  the  payment  of  money  until  an 
execution  has  been  returned  unsatisfied  in  whole  or  part.  Mat- 
ter of  Dissos-jjay,  91  N.  Y.  235.  A  sheriff  who  has  acted  in  good 
faith  should  not  be  punished  as  for  contempt  for  a  mistake  of 
law.  Second  National  Bank  of  Osivego  v.  Dunn,  63  How.  434. 
The  interposition  of  a  verified  answer  by  a  defendant,  knowing 
it  to  be  false,  is  not  a  contempt.  Moffatt  v.  Herman,  17  Abb. 
N.  C.  107,  reversing  id.  62.  See  People  ex  rcl.  Miuisell  v.  Court 
of  Oyer  and  Terminer,  loi  N.  Y.  245,  for  discussion  as  to  con- 
tempt in  view  of  court.  An  answer  may  be  stricken  out  for  re- 
fusal to  obey  an  order  of  the  court.  Clark  v.  Clark,  I  State  Rep. 
287;  Clark  V.  Clark,  11  Civ.  Pro.  7.  When  judgment  enforced  by 
proceedings  for  contempt.  Diffcnbach  v.  Rock,  22  Week.  Dig.  282. 
Where  a  court  has  jurisdiction  of  the  subject-m.atter  and  to 
grant  a  preliminary  injunction,  an  order  made  must  be  treated  as 
a  valid  and  binding  order  of  the  court,  and  as  such  obeyed  until 
revoked  by  subsequent  order  made  in  the  same  action.  This 
applies  to  criminal  contempts.  People  ex  rel.  Gaynor  v.  McKane, 
78  Hun,  154.  Under  subdivision  4,  §  14,  any  person  who  inter- 
feres with  the  process,  control,  or  action  of  the  court  in  a  pending 
litigation  unlawfully  and  without  authority  is  guilty  of  a  civil 
contempt  if  his  act  defeats,  impairs,  impedes,  or  prejudices  the 
rights  or  remedy  of  a  party  to  such  action  or  proceeding.  The 
advising  and  procuring  the  disobedience  of  a  judgment  is  a  con- 
tempt, and  where  the  offence  was  an  affirmative  act  of  resistance 
to  the  process  of  the  court,  and  an  active  effort  to  defeat  its  or- 
ders and  make  its  judgment  nugatory,  it  was  properly  punished 
even  though  the  act  required  had  been  performed.  King  v. 
Barnes,  113  N.  Y.  476,  23  St.  Rep.  263,  affirming  51  Hun,  551, 
4  Supp.  247.  It  was  held  in  the  Supreme  Court  that  it  did  not 
excuse  disobedience  of  the  order  made  within  the  jurisdiction  of 
the  court  if  the  party  was  advised  and  believed  that  it  was  in- 
valid. C'xting  Fischer  V.  Langbein,  103  N.  Y.  84;  Day  w.  Bach,  87 
N.  Y.  56.     The  rule  that  it  is  no  answer  to  proceedings  for  con- 


588  CIVIL   CONTEMPT. 


Art.  2.     "What  is  Civil  Contempt  ;  How  Punishable. 

tempt  in  violation  of  an  injunction  that  the  injunction  was  im- 
providently  granted  was  reiterated.  Kochlcr  v.  Farmers  &■ 
Drovers  National  Ba}ik,  6  Supp.  470,  cited,  People  v.  Bergen,  53 
N.  Y.  404  ;  Clark  v.  Binlnger,  75  N.  Y.  344 ;  People  v.  Dwyer,  90 
N.  Y.  402.  See,  however,  Krone  v.  Kings  Co.  Elevated  Railroad 
Co.,  50  Hun,  441,  3  Supp.  149.  The  rule  in  Hull  v.  Thomas,  3 
Edw.  Chanc.  236;  Livingston  v.  Sivift,  23  How.  Pr.  i,  that  per- 
sons having  knowledge  of  the  injunction  are  punishable  for  its 
disobedience  so  far  as  it  is  necessary  to  indemnify  the  party  in- 
jured by  their  disobedience,  although  never  served  upon  them, 
was  followed  in  Koehler  v.  Farmers  &  Drovers'  National  Batik,  6 
Supp.  470.  In  People  ex  rel.  Can ff man  v.  Van  Bur  en,  136  N.  Y. 
252,  the  violation  of  an  injunction  order  is  considered  in  connec- 
tion with  the  question  of  contempt.  It  is  held  that  unless  such 
an  order  is  void  upon  its  face  for  lack  of  jurisdiction  on  the 
part  of  the  judge  granting  it,  the  party  disobeying  it  may  prop- 
erly be  adjudged  guilty  of  contempt,  however  erroneous  the  grant- 
ing of  the  order  may  have  been  ;  unless  there  was  an  entire  ab- 
sence of  judicial  authority  to  act  it  is  the  duty  of  the  party  to 
obey  it  until  it  is  revoked.  A  person  who,  after  the  court  has 
decided  to  restrain  the  doing  of  an  act,  with  knowledge  of  the 
decision,  does  the  act,  may  be  punished  for  contempt,  although 
the  decision  of  the  court  has  not  been  formulated  by  the 
order  or  writ.  People  ex  rel.  Piatt  v.  Rice,  144  N.  Y.  249.  In 
order  that  a  commitment  for  a  contempt  may  issue  for  the  dis- 
obedience of  a  judgment  or  order,  the  precise  thing  to  be  done 
by  the  party  proceeded  against  must  be  stated  in  the  judgment 
or  order;  there  should  be  no  opportunity  for  ambiguity.  Party 
should  be  adjudged  to  do  a  specific  act.  Ross  v.  Butler,  19  Civ. 
Pro.  152.  A  defendant  directed  by  a  judgment  to  pay  a  sum  of 
money  is  not  in  contempt  until  after  the  service  upon  him  of  a 
certified  copy  of  the  judgment ;  service  upon  his  attorney  is  not 
sufficient  to  bring  him  into  contempt,  and  the  fact  that  he  is 
aware  of  the  judgment  and  has  appealed  from  it  and  recognized 
its  existence  in  other  ways  is  entirely  immaterial.  While  it 
seems  a  party  may  be  punished  for  contempt  in  violating  an  or- 
der or  judgment  of  which  he  has  notice,  he  cannot  be  punished 
for  failing  to  do  something  that  he  is  commanded  to  do  except 
in  the  manner  specified  in  the  statute.  Pittsfield  Natio^ial  Bank 
V.  Tailer,  23  Civ.  Pro.  48. 


CIVIL   CONTEMPT.  589 


Art.  2.     What  is  Civil  Contempt  ;  How  Punishable. 

It  is  said  in  People  ex  rel.  Piatt  v.  Rice,  iz^  N.  Y.  249,  that  it 
is  no  new  principle  that  a  person  may  be  held  guilty  of  a  con- 
tempt for  doing  an  act  after  the  court  had  decided  to  enjoin  its 
doing,  although  that  decision  had  not  been  formally  and  tech- 
nically carried  out,  or  formulated  into  an  order  or  writ ;  it  is 
further  held  that  it  is  not  suflficient  excuse,  wliere  parties  have 
neglected  or  disobeyed  an  order,  to  say  there  was  no  jurisdiction 
to  make  such  an  order,  so  held  in  case  where  it  was  held  there 
was  a  stipulation.  The  court,  having  acquired  jurisdiction  of  the 
action  and  issued  an  injunction,  may  punish  its  violation,  al- 
though the  parties  are  both  non-residents,  and  some  of  the  acts 
complained  of  were  done  outside  the  State.  Prince  Mfg.  Co.  v. 
Prince's  Metallic  Paint  Co.,  51  Hun,  443,  20  St.  Rep.  923,  4 
Supp.  348,  af^rming  2  Supp.  682.  The  order  requiring  an 
officer  of  the  court  to  pay  moneys  in  his  hands,  as  such  officer, 
into  court,  need  not  be  accompanied  by  a  special  commitment, 
but  failure  to  comply  with  the  order  is  a  contempt.  Whitman  v. 
Haines,  21  St.  Rep.  41,  4  Supp.  48.  Where  a  referee  in  fore- 
closure failed  to  comply  with  the  order,  requiring  him  to  pay 
surplus  to  the  treasurer,  and  to  file  his  report,  it  was  held  that  an 
order  was  proper  adjudging  him  guilty  of  contempt,  prejudicing 
the  rights  of  the  parties,  fining  him,  and  directing  his  commit- 
ment, until  payment  and  compliance  with  the  first  order.  Steele 
v.  Gunn.  3  Supp.  692,  19  St.  Rep.  654.  Costs  directed  to  be 
paid  by  judgment  in  a  matrimonial  action  can  be  enforced  by 
contempt,  if  it  appears  to  the  satisfaction  of  the  court  that  pay- 
ment cannot  be  enforced  by  means  of  any  security  given  or  by 
sequestration  or  execution.  Coekefair  v.  Cockefair,  23  Abb. 
N.  C.  219.  A  defendant  in  an  action  for  divorce,  who  has  been 
imprisoned  for  contempt  for  non-payment  of  alimony,  and  re- 
mained in  custody  for  the  full  term  permitted  by  §  3,  cannot  be 
again  imprisoned  for  non-payment  of  other  sums  of  money  after- 
ward becoming  due  as  alimony  under  the  same  judgment.  Winton 
v.  Winton,  16  Civ.  Pro.  337,  53  Hun,  4,  5  Supp.  537.  Where  an 
order  requires  a  purchaser  at  a  forclosure  sale  to  complete  the 
purchase,  and  the  purchaser  refuses  to  obey,  the  court  has  power 
and  should,  under  §§  2266  and  2268,  punish  such  disobedience  as 
a  contempt,  and  should  make  an  order  under  §  2268  directing 
that  a  warrant  issue,  committing  the  person  to  prison  until  the 
order  is  complied  with.     Burton  v.  Lynn,  21  App.  Div.  609.     The 


590  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

court  will  not  punish  as  for  contempt  a  violation  of  an  injunction 
committed  pending  an  appeal  from  the  injunction  order.  A'".  Y. 
M.  &  T.  Co.  V.  Shea,  23  Misc.  15,  49  Supp.  951,  83  St.  Rep.  951. 
It  is  doubtful  whether  the  court  has  power  to  punish  a  person 
for  abuse  of  its  process  in  preferring  unfounded  charges  of  pro- 
fessional malfeasance  against  an  attorney  for  the  purpose  of  pro- 
curing his  disbarment.  Matter  of  Dunn,  27  App.  Div.371,  50  Supp. 
163,  84  St.  Rep.  i6t;.  The  court  has  power  to  punish  as  a  con- 
tempt the  act  of  a  surety  in  becoming  such  upon  an  undertaking 
given  in  the  action  at  a  time  when  he  knows  he  is  insolvent,  and 
has  no  expectation  of  paying  the  liability  thus  incurred.  Simon 
V.  Aldine  PiiblisJiing  Co.,  12  Civ.  Pro.  290,  reversing  11  Civ.  Pro. 
267.  The  contrary,  however,  is  held  in  Norwood  v.  Ray  Manu- 
facturing Co.,  1 1  Civ.  Pro.  273.  It  is  not  suf^cient  to  protect 
a  party  against  punishment  under  §  2284,  for  failure  to  pay  over 
moneys  pursuant  to  an  order  made  upon  tlie  accounting  as 
trustee,  to  show  that  an  action  may  be  maintained  for  the  same 
cause,  but  it  must  be  shown  to  be  a  case  where  the  law  has 
specially  prescribed  the  action  as  a  means  of  redress.  Matter  of 
Morris,  45  Hun,  167.  Where  a  trustee  has  been  adjudged  guilty 
of  contempt  because  of  failure  to  pay  over  moneys  received  by 
him  in  that  capacity,  the  court  may  impose,  as  a  fine,  the  amount 
which  he  has  received  and  failed  to  pay,  and  direct  him  to  be 
imprisoned  until  he  shall  pay  the  fine.  Matter  of  Morris,  45 
Hun,  167.  It  was  held  in  this  case  that  it  was  doubtful  whether 
any  allowance  by  way  of  costs  and  expenses  could  be  made  in 
contempt  proceedings,  and  still  further  that  no  allowance  can  be 
rnade  for  counsel  fees.  A  defendant  in  an  action  for  divorce, 
who  leaves  the  State  on  granting  of  an  order  requiring  him  to 
pay  alimony  to  plaintiff,  and  neglects  to  obey  the  order,  is 
guilty  of  contempt,  and  the  court  is  authorized  to  strike  out  his 
appearance  and  answer,  direct  a  reference,  and  allow  the  action 
to  proceed  as  if  defendant  had  not  appeared  or  answered  ;  and 
while  in  contempt  he  cannot  apply  to  the  court  to  have  any  of 
the  proceedings  against  him  set  aside  for  irregularity.  Quigleyv. 
Quigley,  45  Hun,  23.  The  advice  of  his  attorney  that  the  in- 
junction is  illegal  will  not  justify  or  excuse  the  party  enjoined 
in  violating  the  injunction.  Capet  v.  Parker,  3  Sandford,  662.  In 
Hawlcy  v.  Bennett,  4  Paige,  164,  it  was  said  that  so  far  as  the 
rights  of  the  party  have  been  affected  by  the  breach  of  the   in- 


CIVIL    CONTEMPT.  59I 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

junction,  it  is  no  defence  to  the  person  who  has  been  guilty  of 
violating,  that  he  did  so  under  the  advice  of  counsel,  although,  if 
he  has  acted  in  good  faith,  it  may  be  sufficient  to  protect  him 
from  punishment,  as  for  a  criminal  contempt.  The  rights  of  par- 
ties must  be  protected  against  the  wrongful  acts  of  the  adverse 
party,  although  he  may  have  acted  under  the  advice  of  counsel. 
But  where  a  party  acted  under  the  mistaken  advice  of  counsel, 
that  an  injunction  was  superseded  by  an  appeal  taken  therefrom, 
the  fine  imposed  should  not  exceed  the  actual  damages  sustained 
by  the  adverse  party.  Power  v.  Village  of  Athens,  19  Hun, 
165.  Yet  while  the  fact  that  a  person  acted  under  the  erro- 
neous advice  of  counsel  may  palliate  the  offence  so  as  to 
protect  him  from  further  punishment,  it  will  not  protect  him 
from  a  fine  sufficient  to  compensate  the  adverse  party.  Lansing 
v.  Easton,  7  Paige,  364 ;  Billings  v.  Carver,  54  Barb.  40. 

An  order  putting  a  party  in  contempt  was  modified  upon  its 
appearing  that  he  acted  under  the  advice  of  counsel.  /;/  People  ex 
rel.  Del  Mar  v.  St.  Louis  Ry.  Co.,  19  Abb.  N.  C.  i,  a  like  rule  was 
held,  the  respondents  having  acted  from  a  mistaken  knowledge 
of  duty  and  other  legal  advice,  and  having  subsequently  fully 
complied  with  the  order.  A  mere  statement  by  the  officers  of  a 
corporation  that  they  are  not  now  possessed  of  the  books,  which 
they  were  ordered  to  produce  upon  an  examination  before  trial, 
will  not  exonerate  them  from  obedience  to  the  order,  where  it 
appears  that  the  books  were  lately  in  their  control.  Fenlon  v, 
Dempsey,  21  Abb.  N,  C.  291,  In  proceedings  to  punish  for  con- 
tempt in  refusing  to  obey  a  judgment  that  required  defendant, 
as  president  of  a  company,  to  do  certain  acts,  it  was  held  no  ex- 
cuse for  his  non-compliance  that  the  co-operation  of  other 
officers  was  necessary.  King  v.  Post,  12  St.  Rep.  575.  Under 
§  2284  a  witness  may  be  punished  by  the  imposition  of  a  fine 
within  the  limit  prescribed  by  that  statute,  for  failure  to  attend 
as  a  witness  in  obedience  to  a  subpoena,  although  no  actual  loss 
or  injury  has  been  occasioned  to  the  party  in  whose  behalf  the 
subpoena  was  served.  People  ex  rel.  Duff  us  v.  Brown,  46  Hun, 
320.  A  person  against  whom  two  proceedings  for  contempt  have 
been  executed  cannot  be  said  to  be  twice  punished  for  the  same 
offence,  where  the  performance  of  the  act  required  will  relieve 
him  from  imprisonment  in  both  proceedings  and  the  imposition 
of  an  excessive  fine  will  not  entitle  him  to  relief  from    imprison- 


592  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

ment  on  habeas  corpus.  People  ex  rel.  Post  v.  Grant,  13  Civ.  Pro. 
305.  In  case  of  the  plaintiff  procuring  an  order  of  arrest  by  im- 
posing an  undertaking  with  worthless  sureties  upon  the  court,  it 
was  held  that  the  plaintiff  or  attorney  and  sureties  should  be 
fined  in  the  amount  of  the  judgment  recovered  upon  the  under- 
taking, and  in  default  thereof,  imprisonment  for  a  period  of 
three  months.  Foley  v.  Stone,  15  Civ.  Pro.  224.  A  proceeding 
to  punish  for  contempt  is  a  special  proceeding,  original  in  its 
character,  and  is  independent  of  the  proceeding  in  which  the 
contempt  arose.  Gibbs  v.  Prindle,  1 1  App.  Div.  470,  citing  Erie 
Raihvay  Cojnpany  w.Ra^nsey,  45  N.  Y.  637  ;  People  ex  rel.  Grant  v. 
Warner,  51  Hun,  53.  It  is  the  disobedience  of  the  order  of  the 
court,  and  not  the  failure  to  recognize  the  instrument  by  which 
it  is  enforced,  that  constitutes  a  contempt.  People  ex  rel.Plattv, 
Rice,  80  Hun,  437,  62  St.  Rep.  289,  30  Supp.  457,  affirmed,  144 
N.  Y.  249.  A  committee  of  a  board  of  supervisors  has  power  to 
subpoena  a  witness,  but  neither  the  Supreme  Court  nor  a  judge 
thereof  can  punish  as  for  a  contempt,  disobedience  of  the  com- 
mand. Where  a  person  fails  to  obey  such  subpoena  any  judge  of 
the  court  may  issue  a  warrant  commanding  the  sheriff  to  ap- 
prehend the  defaulting  witness  and  bring  him  before  the  com- 
mittee. But  where  the  official  term  of  all  the  supervisors  com- 
posing the  committee  has  expired  before  the  issuing  of  the 
warrant,  committee  has  no  power  to  act  further  and  the  judge 
has  no  power  to  issue  the  warrant.  Matter  of  Superintendoit  of 
the  Poor  of  Westchester  Co.,  6  App.  Div.  144.  Proceedings  to 
punish  a  witness  for  refusing  to  testify  before  a  committee  of  the 
board  of  supervisors  must  be  instituted  and  carried  on  before  a 
judge  and  not  before  a  Special  Term  of  the  court.  The  pro- 
visions of  §  2266  apply  only  to  a  civil  action  or  special  proceeding 
pending  in  court,  and  have  no  application  in  the  case  of  a  wit- 
ness subpoenaed  to  appear  before  a  committee  of  the  board  of 
supervisors.  People  ex  rel.  Stitz  v.  Rice,  57  Hun,  62,  10  Supp. 
272. 

The  incumbent  of  the  office  of  warden  of  the  city  prison  of 
New  York  was  removed  by  the  commissioner  of  correction,  who 
appointed  a  successor,  who  exercised  the  duties  of  the  office 
until  the  court  upon  certiorari  made  a  final  order  adjudging  that 
the  removal  was  wrongful,  and  directing  the  commissioner  to 
restore  the   person  removed   to  his  office.     The  commissioner 


CIVIL   CONTEMPT.  593 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

made  an  order  stating  that  two  wardens  were  necessary  and 
continued  his  new  appointee  to  serve  as  warden  during  the  day 
and  designated  the  reinstated  warden  to  serve  only  at  night. 
Held,  that  the  commissioner's  decision  that  a  second  warden  was 
necessary  was  a  shallow  pretext  for  disobeying  the  order  of  the 
court,  and  that  he  was  guilty  of  contempt.  People  ex  rel.  Fallon  v. 
Wrto^/it,  22  App.  Div.  165,  47  Supp.  894,81  St.  Rep.  894.  Where 
the  return  to  a  writ  of  habeas  corpus,  procured  by  a  husband  for 
the  purpose  of  obtaining  from  his  wife  the  custody  of  their  infant 
child,  alleges  that  the  child  is  living  in  New  Jersey  and  is  not  a 
resident  of  New  York,  and  no  traverse  is  interposed  to  such 
allegation,  the  mother  of  the  child  cannot  be  adjudged  guilty  of 
contempt  for  a  failure  to  produce  the  child  as  demanded  in  the 
writ.  People  ex  rel.  Winston  v.  Winston,  31  App.  Div.  121,  52  Supp. 
814,  86  St.  Rep.  814.  A  surety  who,  by  false  justification,  secures 
the  release  of  a  mechanic's  lien  is  guilty  of  a  contempt  of  court, 
and  lapse  of  time  is  not  a  defence.  Matter  of  Hay  Foundry  and 
Iron  Works,  22  App.  Div.  87,  47  Supp.  802,  81  St.  Rep.  802.  After 
the  entry  of  judgment  in  a  judgment  creditor's  action  adjudging 
that  a  transfer  by  the  judgment  debtor  of  his  business,  consisting 
of  books  of  account  and  merchandise,  to  his  sister,  was  fraudulent 
and  void  as  to  his  creditors,  and  requiring  him  and  his  sister  to 
account  for  the  property  so  transferred,  the  judgment  debtor 
attended  before  the  referee  designated  in  the  judgment,  and 
swore  that  the  books  of  the  business  as  carried  on  by  his  sister 
were  in  the  possession  of  third  persons  to  whom  she  had  sold. 
Held,  that  the  judgment  debtor  could  not  be  committed  for  con- 
tempt because  of  an  alleged  failure  to  account,  as  he  had  ren- 
dered as  full  an  account  as  he  possibly  could.  Diffany  v.  Risley, 
23  App.  Div.  371,  48  Supp.  283,  82  St.  Rep.  283.  A  resale  without 
leave  of  c»urt  by  a  vendor  of  goods  which  a  receiver  has  refused 
to  receive  under  a  contract  is  not  a  contempt  of  the  injunction 
order.  Moore  v.  Potter,  155  N.  Y.  481,  50N.  E.  Rep.  271.  Where 
•the  commissioner  of  bridges  of  New  York  City  violates,  under 
advice  of  counsel,  an  injunction  order  prohibiting  him  froin  inter- 
fering with  or  obstructing  plaintiff'in  laying  down  his  pneumatic 
tubes  over  the  bridge,  he  is  liable  to  punishment  as  for  a  con- 
tempt, but  where  the  act  was  done  in  good  faith  and  with  no 
wilful  intent  to  violate  the  order,  the  commissioner  and  his  adviser 
should  not  be  punished  by  way  of  fine  for  their  act.  New  York 
38 


594  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

Mail  and  Transportation  Co.  v.  SJica,  30  App.  Div.  374,  52  Supp. 
5,  86  St.  Rep.  5.  In  general,  if  a  party  stipulates  in  open  court 
to  pay  the  expenses  of  a  reference,  and  he  is  ordered  to  pay  and 
refuses,  giving  no  satisfactory  reason,  he  may  be  punished  for 
contempt.  Fischer  v.  Raab,  56  How.  218,  afifirmed,  58  id.  221; 
People  V.  Rcilly,  56  id.  223.  Bringing  an  action  in  the  name  of 
another  person,  without  his  privity  or  consent,  is  a  contempt. 
Butterworth  v.  Stagg,  2  Johns.  Cas.  291. 

An  attorney  employed  in  that  capacity  who  collects  or  re- 
ceives money  for  his  client  and  refuses  to  pay  it  after  demand 
made  over,  is  punishable  as  for  a  contempt.  Matter  of  Bleakly, 
5  Paige,  311  ;  Matter  of  D akin,  4.  Hill,  42  ;  Wilmer dings  v.  Fowl- 
er, 14  Abb.  (N.  S.)  249;  People  v.  Smith,  3  Cai.  221  ;  People  v. 
Wilson,  5  Johns.  368  ;  Bohanan  v.  Peterson,  9  Wend.  503  ;  Ex 
parte  Ferguson,  6  Cow.  596;  Matter  of  Steinert,  24  Hun,  246; 
Ex  parte  Staats,  4  Cow.  y6.  An  attorney  is  also  liable  for  con- 
tempt for  appearing  for  a  defendant  and  confessing  judgment 
without  authority.  Denton  v.  Noycs,  6  Johns.  296.  But  a  client 
will  not  be  punished  for  an  act  done  by  his  attorney  without  his 
privity,  procurement,  or  consent.  Satterlee  v.  DeComeau,  7 
'  Robt.  666.  A  receiver  who  refuses  to  pay  out  funds  in  his 
hands,  pursuant  to  an  order  of  the  court,  is  punishable  as  for  a 
contempt.  Clark  v.Bininger,  43  N.  Y.  Super.  126,  344,  afifirmed, 
75  N.  Y.  344.  A  sheriff  is  liable  to  attachment  for  not  returning 
process.  People  v.  Brown,  6  Cow.  41.  Or  for  an  insufficient 
return,  with  intent  to  favor  defendant.  Bnrk  v.  Campbell,  15 
Johns.  456.  A  witness  is  liable  for  contempt  for  refusing  to 
attend  court,  and  it  need  not  appear  that  such  conduct  was  cal- 
culated to,  or  did,  impair  the  rights  or  remedies  of  the  parties 
complaining  thereof.  Bleecker  v.  Carroll,  2  Abb.  82  ;  Woods  v. 
DeFiganiere,  i  Robt.  607.  In  proceedings  to  examine  a  witness 
before  trial,  it  must  appear,  to  put  him  in  contempt,  that  the 
order  prescribed  by  §  873  has  been  served  on  him.  Loop  v. 
Gould,  17  Hun,  585  ;  Tebo  v.  Baker,  16  id.  182.  The  court  is  to 
decide  as  to  whether  a  question  put  to  a  witness  is  proper,  and 
that  question  cannot  be  inquired  into,  to  impeach  a  commitment 
for  contempt.  People  v.  Cassells,  5  Hill,  164;  People  v.  Sheriff,  7 
Abb.  96;  Forbes  v.  Meeker,  3  Edw.  452.  As  to  the  power  of  a 
legislative  body  to  commit  for  contempt,  see  The  People  ex  rel. 
McDonald  V.  Kceler,  99  N.  Y.  465,  which  is  an  exhaustive  review 


CIVIL   CONTEMPT.  595 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 


of  the  authorities,  and  the  latest  expression  of  the  court  of  last 
resort  on  this  question. 

A  witness  is  not  guilty  of  a  contempt  in  refusing  to  testify 
to  a  fact  which  would  subject  him  to  a  penalty  or  forfeiture. 
Henry  v.  Salina  Bank,  i  N.  Y.  83.  Nor  is  a  county  treasurer 
bound  to  answer  an  interrogatory  put  to  him  by  a  committee 
appointed  by  a  board  of  supervisors  concerning  moneys  in  his 
hands  as  such  treasurer.  In  re  Dickinson,  56  How.  260.  A  wit- 
ness is  not  bound  to  answer  a  question  tending  to  disgrace  or 
criminate  himself.  In  re  Leivis,  39  How.  155  ;  LoJwian  v.  People, 
I  N.  Y.  379;  People  v.  Rector,  19  Wend.  569;  People  v.  Herrick, 
13  Johns,  82.  The  privilege  is,  however,  personal  to  the  witness. 
Brandon  v.  People,  42  N.  Y.  265  ;  Southlard  v.  Rex  ford,  6  Cow. 
254;  Ward  v.  People,  6  Hill,  144.  By  statute,  communications 
between  attorney  and  client,  between  physician  and  patient, 
and  between  clergyman  and  layman,  are  confidential ;  also  be- 
tween husband  and  wife. 

Sub.    2.   How  Judgment  Enforced  by  Contempt  Proceedings.      §  1241. 

§  1241.  When  a  judgment  may  be  enforced  by  punishment  for 
disobeying  it. 

In  either  of  the  fohowing  cases,  a  judgment  may  be  enforced,  by  serving  a  certified 
copy  thereof,  upon  the  party  against  whom  it  is  rendered,  or  the  officer  or  person,  who 
is  required  thereby,  or  by  law,  to  obey  it ;  and,  if  he  refuses  or  wilfully  neglects  to 
obey  it,  by  punishing  him  for  a  contempt  of  the  court : 

1.  Where  the  judgment  is  final,  and  cannot  be  enforced  by  execution,  as  prescribed 
in  the  last  section. 

2.  Where  the  judgment  is  final,  and  part  of  it  cannot  be  enforced  by  execution,  as 
prescribed  in  the  last  section ;  in  which  case,  the  part  or  parts,  which  cannot  be  so 
enforced,  may  be  enforced  as  prescribed  in  this  section. 

3.  Where  the  judgment  is  interlocutory,  and  requires  a  party  to  do,  or  to  refrain 
from  doing,  an  act,  except  in  a  case  specified  in  the  next  subdivision. 

4.  Where  the  judgment  requires  the  payment  of  money  into  court,  or  to  an  officer 
of  the  court ;  except  where  the  money  is  due  upon  a  contract,  express  or  implied,  or 
as  damages  for  non-performance  of  a  contract.  In  a  case  specified  in  this  subdivision, 
if  the  judgment  is  final,  it  may  be  enforced,  as  prescribed  in  this  section,  either  simul- 
taneously with,  or  before  or  after  the  issuing  of  an  execution  thereupon,  as  the  court 
directs. 

The  provisions  of  §  1241  are  not  imperative;  the  judgment 
creditor  has  no  claim  de  jure  that  the  power  should  be  exercised; 
its  exercise  is  discretionary  with  the  court  below.  Cochrane' s  Ex- 
ecutor V.  Ingersoll,  73  N.  Y.  613.  The  cases  where  disobedience 
to  a  judgment  may  be  punished  as  a  contempt  are,  where  it  can- 


596  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 


not  be  enforced  by  execution,  or  where  it  directs  the  payment 
of  money  into  court,  or  to  an  officer  of  the  court.  G Gara  v. 
Kearney,  JJ  N.  Y.  423.  A  surety  on  an  administrator's  bond, 
who,  after  an  unsatisfied  decree  against  him,  and  a  judgment  on 
the  bond,  has  paid  the  amount,  has  a  right  to  an  attachment 
against  the  administrators  ;  the  judgment  on  the  bond  did  not 
take  away  any  remedy  on  the  principal  debt,  and  attachment  and 
execution  may  be  used  concurrently.  This  decision  under  R. 
S.  Toivnscnd  v.  Whitney,  75  N.  Y.  425.  Where  a  judgment 
adjudges  the  payment  of  a  sum  to  a  creditor  from  the  surplus 
income  of  a  trust  estate,  the  trustee  is,  after  demand,  personally 
liable,  and  precept  may  be  issued  to  collect  the  amount  on  motion, 
on  its  being  shown  that  he  has  paid  the  amount  over  on  another 
judgment.  Williamsv.  Thorn,  81  N.  Y.  381.  When  a  judgment 
requires  a  party  to  execute  a  conveyance,  and  an  instrument  in 
proper  form  is  tendered  him,  he  is  bound  to  execute  it,  though 
it  has  not  been  submitted  to  the  court  for  approval,  and  it  need 
not  be  tendered  simultaneously  with  service  of  a  copy  of  the 
judgment.  Hillikcr  v.  HatJiornc,  5  Bosw.  710;  Morris  v.  Walsh, 
9  id.  636. 

The  method  of  proceeding  to  punish  for  contempt  on  refusal 
by  a  party  to  carry  out  the  requirements  of  a  judgment  was  con- 
sidered in  Pitt  V.  Davidson,  37  N.  Y.  235,  3  Abb.  N.  C.  398,  34 
How.  455.  The  cases  where  disobedience  of  a  judgment  may  be 
punished  for  contempt  are  where  it  cannot  be  enforced  by  execu- 
tion or  where  it  directs  the  payment  of  money  into  court  or  to  an 
officer  of  the  court.  O'Gara  v.  Kearney,  yj  N.  Y.  423.  A  judg- 
ment directing  defendant  to  pay  plaintiff  money  received  by 
defendant  for  property  sold  in  violation  of  an  injunction  cannot 
be  enforced  by  contempt  proceedings  under  §  1241,  such  judg- 
ment being  enforceable  by  execution.  Tabor  v.  Jaecke,  12  Supp. 
645,  45  St.  Rep.  832.  A  judgment  rendered  in  an  action  com- 
pelling a  trustee  of  a  corporation  to  account  for  property  of  the 
corporation  wrongfully  appropriated  by  him,  and  directing  him 
to  pay  over  the  value  thereof  in  money  to  the  receiver,  may  be 
enforced  by  contempt  proceedings  even  though  execution  could 
have  been  issued  thereon.  Gildcrsleeve  v.  Lester,  68  Hun,  535, 
affirmed,  139  N.  Y.  608,  52  St.  Rep.  559,  22  Supp.  1028.  When 
the  sole  liability  which  is  sought  to  be  enforced  by  judgment  is 
that  of  a  partner  to  his  co-partners,  and  such  liability  arises  out 


CIVIL   CONTEMPT.  59/ 


Art.  2.     What  is  Civil  Contempt ;  How  Punishable. 

of  a  contractual  relation  existing  between  them,  a  fiduciary  rela- 
tion is  not  established  such  as  will  authorize  the  punishment  of 
defendant  for  contempt  under  §  1241.  Walford  v.  Harris,  78 
Hun,  348,  distinguishing  Gilderslcevev.  Lester,  68  Hun,  535.  In 
order  to  enforce  a  judgment  under  §  1241  the  defendant  should 
be  served  personally  with  a  copy  of  the  judgment.  Service  of 
defendant's  attorney  with  personal  demand  upon  defendant  is 
insufBcient.  Fcro  v.  Van  Evcrs,  9  How.  148.  But  where  the 
judgment  requires  a  party  to  execute  an  assignment  or  convey- 
ance, and  an  instrument  in  proper  form  is  tendered  to  him,  he  is 
bound  to  execute  it,  although  he  is  not  bound  to  submit  to  the 
court  or  judge  for  approval.  Hcllikcn  v.  Hathorne,  5  Bosw.  710. 
And  a  deed  need  not  necessarily  be  tendered  for  execution 
simultaneously  with  the  service  of  a  copy  of  the  judgment.  It 
may  be  tendered  at  any  tim.e  if  such  service  is  sufificient.  Morris 
v.  Walsh,  9  Bosw.  636,  14  Abb.  388. 

Section  1241  is  not  imperative,  but  discretionary.  Nolan  v. 
Nolan,  29  Hun,  630.  The  court  cannot  punish  as  for  contempt 
a  husband  in  not  paying  the-^osts  and  counsel  fees  which  he  was 
directed  to  pay  in  final  judgment  in  an  action  for  separation, 
since  they  may  be  collected  by  execution.  Jacquin  v.  Jacqiiin, 
36  Hun,  378.  An  attachment  for  disobedience  of  an  injunction 
will  not  be  granted  where  the  defendant  has  appealed  and  given 
security  for  stay  of  proceedings  on  judgment.  Howe  v.  Searing, 
II  Abb.  28.  Where  a  judgment  adjudges  the  payment  of  a  sum 
to  a  creditor  from  the  surplus  income  of  the  trust  estate,  after 
demand  the  trustee  is  personally  liable  and  a  precept  may  issue 
to  collect  the  amount  from  him.  Williams  v.  Thome,  81  N.  Y. 
281.  Subdivision  4  of  §  1241  provides  that  a  person  disobey- 
ing a  judgment  of  the  court  which  required  the  payment  of 
money  into  court,  or  to  an  ofificer  of  the  court,  except  where  it  is 
due  upon  a  contract  express  or  implied,  or  for  damages  for  non- 
performance of  the  contract,  may  be  punished  for  contempt,  and 
where  an  order  was  made  by  which  the  relator  was  directed  to 
pay  over  a  sum  of  money  to  a  receiver,  a  demand  having  been 
made,  and  the  relator  having  failed  to  make  the  payment,  a 
warrant  of  attachment  was  properly  issued.  People  ex  rel.  Pond 
V.  Hampton,  15  Misc.  364.  The  cases  in  which  a  party  failing  to 
comply  with  the  terms  of  a  judgment  may  be  punished  for  con- 
tempt are  considered,  and  authorities  cited  in  Kittel  v.  Stutcc,  1 1 


598  CIVIL   CONTEMPT. 


Art.   2.     What  is  Civil  Contempt ;  How  Punishable. 


Misc.  279.  The  surety  on  an  administrator's  bond,  who,  after  an 
unsatisfied  decree  or  judgment  on  the  bond,  has  paid  the  amount, 
has  a  right  to  an  attachment  against  the  administrator.  The 
judgment  on  the  bond  did  not  take  away  any  remedy  on  the 
principal  debt,  and  attachment  and  execution  may  issue  concur- 
rently.     Tozvnsendv.  Whitney,  75  N.  Y.  425. 

The  method  of  procedure  for  the  enforcement  of  a  judgment 
for  alimony  in  matrimonial  actions  under  §  1773  of  the  Code  is 
fully  stated  in  Fiero  on  Special  Actions,  pages  975  to  988,  where 
the  authorities  and  precedents  are  given  for  procedure  in  such 
cases.  It  is  therefore  unnecessary  to  go  into  this  matter  in 
detail,  and  no  attempt  will  be  made  to  discuss  the  question  ex- 
cept by  way  of  citation  of  a  single  authority.  In  Dclanoy  v. 
Delanoy,  19  App.  Div.  295,  it  is  held,  reiterating  the  rule  so  fre- 
quently laid  down  by  the  courts,  that  a  husband  cannot  excuse 
his  failure  to  pay  alimony  by  setting  up  as  answer  to  a  motion 
to  punish  him  for  contempt  his  present  poverty  or  inability  to 
pay.  It  is  further  held  that  the  procedure  on  such  a  motion  is 
to  be  taken  under  §§  2266  and  2268  of  the  Code,  and  judgment 
is  to  be  enforced  under  §  1773,  but  that  the  necessary  prerequisite 
is  service  upon  the  husband  of  a  certified  copy  of  the  judgment 
and  demand  for  payment. 

Sub.    3.   Contempts  in  Supplementary  Proceedings.      §  2457. 

§  2457.  Disobedience  to  order;  how  punished. 

A  person  who  refuses,  or  without  sufficient  excuse  neglects,  to  obey  an  order  of  a 
judge  or  referee,  made  pursuant  to  the  last  two  sections,  or  to  any  other  provision  of 
this  article,  and  duly  served  upon  him,  or  an  oral  direction,  given  directly  to  him  by  a 
judge  or  referee,  in  the  course  of  the  special  proceeding ;  or  to  attend  before  a  judge 
or  referee,  according  to  the  command  of  a  subpoena,  duly  served  upon  him  ;  may  be 
punished  by  the  judge  or  by  the  court  out  of  which  the  execution  was  issued,  as  for 
a  contempt. 

Co.  Free.  §  302. 

The  authorities  under  this  section  are  cited  and  the  practice 
given  under  Supplementary  Proceedings. 

Sub.  4.  Contempt  Proceedings  to  Enforce  Surrogate's  Decree.  §  2555. 

§  2555.  Enforcement  of  decree;  by  punishment  for  contempt. 

In  either  of  the  following  cases,  a  decree  of  a  surrogate's  court,  directing  the  pay- 
ment of  money,  or  requiring  the  performance  of  any  other  act,  may  be  enforced,  by 
serving  a  certified  copy  thereof  upon  the  party  against  whom  it  is  rendered,  or  the 
officer  or  person  who  is  required  thereby,  or  by  law,  to  obey  it ;  and  if  he  refuses  or 
wilfully  neglects  to  obey  it,  by  punishing  him  for  a  contempt  of  court. 


CIVIL   CONTEMPT.  599 


Art.  2.     What  is  Civil  Contempt ;  How  Punishable. 

1.  Where  it  cannot  be  enforced  by  execution,  as  prescribed  in  the  last  section. 

2.  Where  part  of  it  cannot  be  so  enforced  by  execution  ;  in  which  case,  the  part  or 
parts,  which  cannot  be  so  enforced,  may  be  enforced  as  prescribed  in  this  section. 

3.  Where  an  execution,  issued  as  prescribed  in  the  last  section,  to  the  sheriff  of  the 
surrogate's  county,  has  been  returned  by  him  wholly  or  partly  unsatisfied. 

4.  Where  the  delinquent  is  an  executor,  administrator,  guardian,  or  testamentary 
trustee,  and  the  decree  relates  to  the  fund  or  estate,  in  which  case  the  surrogate  may 
enforce  the  decree  as  prescribed  in  this  section,  either  without  issuing  an  execution, 
or  after  the  return  of  an  execution,  as  he  thinks  proper. 

If  the  deUnquent  has  given  an  official  bond,  his  imprisonment,  by  virtue  of  pro- 
ceedings to  punish  him  for  a  contempt,  as  prescribed  in  this  section,  or  a  levy  upon 
his  property  by  virtue  of  an  execution,  issued  as  prescribed  in  the  last  section,  does 
not  bar,  suspend,  or  otherwise  affect  an  action  against  the  sureties  in  his  official  bond. 

L.  1867,  ch.  782,  §  15;  see  §  1241. 

The  provisions  of  §  2555  do  not  apply  to  the  enforcement  of  a 
decree  rendered  prior  to  September  i,  1880.  Underhillv.  NicholSy 
4  Redf.  318  ;  WoodJwuse  v.  WoodJwusc,  5  id.  131  ;  Joelw.  Ritter- 
vian,  id.  136.  Where  an  executor  was  indebted  to  his  testator, 
and  after  assuming  charge  of  the  estate  became  insolvent,  having 
accounted,  however,  for  all  moneys  of  the  estate  received  by  him, 
it  was  held  he  was  not  amenable  to  contempt  proceedings  for 
failure  to  pay  the  debt.  The  provisions  of  the  Code  were  passed 
to  permit  the  punishment,  by  contempt  proceedings,  of  trustees 
who  had  embezzled  the  funds  of  cestuis  que  trust,  and  do  not 
change  the  character  of  a  contract  debt  due  from  the  executor. 
In  re  Rugg,  3  State  Rep.  224,  citing  Baiicus  v.  Stover,  89  N.  Y. 
I.  It  is  said  by  Livingston,  surrogate,  in  Ferguson  v.  Cunimings, 
I  Dem.  433,  that  the  powers  conferred  by  §  2555  should  be  exer- 
cised in  conformity  with  the  liberal  spirit  of  State  legislation  on 
the  subject  of  imprisonment  for  debt.  The  holding  m  Re  Dissos- 
way,  91  N.  Y.  235,  that  contempt  proceedings  cannot  be  taken 
to  enforce  a  decree  for  payment  of  money  until  an  execution  has 
been  returned  un.satisfied,  wholly  or  in  part,  relates  to  proceed- 
ings defined  by  the  first  three  subdivisions  of  the  section,  and  the 
provisions  of  §  4  do  not  require  an  execution  against  an  executor, 
etc.,  but  it  is  held,  in  Estate  of  Kil/inger,  2  McCarty's  Civ.  Pro. 
68,  that  it  is  discretionary  with  the  surrogate  in  such  case  whether 
to  require  the  issue  and  return  of  an  execution  ;  and  Ferguson  v. 
Cuniniings,  I  Dem.  433,  holds  that  the  issuing  of  an  execution 
ought  not,  in  the  exercise  of  a  sound  discretion,  to  be  dispensed 
with.  An  administrator  ordered  to  pay  costs  cannot  excuse  non- 
payment by  showing  he  has  no  assets,  non  constat,   but  that  he 


600  CIVIL   CONTEMPT. 


Art.  2.     What  is  Civil  Contempt  ;  How  Punishable. 

has  squandered  them.  Gillies  v.  Kreiider,  i  Dem.  349.  As  to 
insufficiency  of  assets,  the  surrogate  exercises  a  discretion  in  de- 
ciding the  fact  on  conflicting  evidence.  Matter  of  Snyder,  2 
State  Rep.  758.  In  Matter  of  Kurtzman,  2  id.  655,  it  is  said  that 
whatever  doubt  there  may  have  been  before  the  Code,  as  to  the 
right  of  a  surrogate  to  punish  an  administrator  for  contempt,  for 
non-payment  of  moneys,  there  can  no  longer  be  any  doubt  as  to 
such  power  and  its  extent.  The  claim  of  an  executor  that  he 
has  no  funds  is  too  general,  and  is  unavailing.  Citing  Matter  of 
Snyder,  34  Hun,  302;  Matter  of  Steinert,  29  id.  301.  The 
liability  of  an  executor  who  was  indebted  to  his  testator  is  not 
the  same  as  if  he  had  received  assets  of  the  estate,  and  if  unable 
to  pay,  he  cannot  be  punished  for  contempt.  Baucus  v.  Stover^ 
89  N.  Y.  I.  The  decisions  under  the  Revised  Statutes  as  to 
power  of  surrogate  to  punish  for  non-payment  of  moneys  were 
very  conflicting.  See  Watson  v.  Nelson,  69  N.  Y.  536;  People  v. 
Cowles,  4  Keyes,  46  ;  Seaman  v.  Dnryea,  11  N.  Y.  324 ;  Townsend 
V.  Whitney,  75  id.  425, 

In  People  V.  Marshall,  7  Abb.  N.  C.  380,  will  be  found  a  dis- 
cussion and  history  of  the  power  of  courts  of  probate  and  chan- 
cery to  imprison  for  contempt  for  non-payment  of  decrees.  In 
Estate  of  Sherry,  7  Abb.  N.  C.  390,  it  is  said  that  an  attachment 
against  an  executor  or  administrator  for  non-payment  of  money 
as  required  by  a  surrogate's  decree  cannot  be  issued  unless  it  be 
shown  that  he  had  funds  in  his  hands  at  the  time  of  the  decree. 
Citing  Watson  v.  Nelson,  69  N.  Y.  536.  The  same  rule  is  laid 
down  in  Stockbridge's  Assignment,  7  Abb.  N.  C.  395,  relative 
to  assignment  for  the  benefit  of  creditors.  Slawson  v.  Sehlessinger, 
7  Abb.  N.  C.  399,  holds  that  payment  of  costs  awarded  against 
an  infant  may  be  enforced  by  attachment  against  guardian  ad  litem 
as  a  matter  of  course  and  of  legal  right.  In  Matter  of  Watson, 
it  is  held  that  a  surrogate's  power  to  enforce  a  decree  did  not 
authorize  him  to  inflict  a  fine  and  then  commit  upon  the  fine. 
Appeal  dismissed  in  69  N.  Y.  536,  after  a  full  discussion  of  the 
subject  in  the  opinion.  Where  a  surrogate  has  made  a  decree 
for  the  payment  of  money  by  an  administrator,  he  may  enforce 
performance  of  it  by  attachment.  Diinford  v.  Weaver,  84  N.  Y. 
445.  In  order  to  punish  a  person  for  contempt  for  non-payment 
of  money  ordered  by  the  court  to  be  paid,  the  personal  demand 
required  by  the  Code,   §  2555,  must   be  shown  by  affidavit.     It 


CIVIL    CONTEMPT.  6oi 


Art.   2.     What  is  Civil  Contempt  ;  How  Punishable. 

must  be  a  demand  by  or  on  behalf  of  the  party  to  whom  the 
order  required  the  payment  to  be  made.  Matter  of  Gilniaiiy 
15  St.  Rep.  718.  An  attachment  cannot  be  based  upon  disobe- 
dience of  an  order  without  proof  of  personal  service.  Matter  of 
Barnes,  i  Civ.  Pro.  59.  An  executor  who  is  indebted  to  the 
estate  of  the  testator  and  who  is  unable  to  pay  the  amount  which 
it  has  been  adjudged  he  is  indebted  will  not  be  adjudged  in  con- 
tempt where  he  is  not  able  to  pay  it.  Matter  of  Ockershausen, 
59  Hun,  200.  A  direction  that  an  executor  pay  an  allowance  to 
a  guardian  ad  litem  is  one  which  can  be  enforced  by  contempt 
proceeding.  Beckett  v.  Place,  12  Misc.  323.  Personal  property 
specifically  bequeathed  to  an  executor  is  subject  to  application 
upon  the  debts  of  the  testator's  estate  where  there  is  a  deficiency 
of  assets  ;  and  for  a  failure  to  account  therefor  upon  an  order  of 
the  court  he  is  guilty  of  contempt  of  court  and  is  properly  fined 
the  appraised  value  of  the  property  covered  by  his  specific  legacy. 
When  this  fine  is  paid  by  the  executor  he  will,  under  §  2284,  be 
entitled  to  credit  for  the  amount.  Matter  of  Pye,  18  App.  Div. 
306,  affirmed  154  N.  Y.  773.  The  Code  confers  upon  the  surro- 
gate power  to  enforce  proceedings  for  contempt  for  disobedience 
to  a  decree  directing  payment  of  costs.  Matter  of  Humfreville, 
19  App.  Div.  381,  reversed  in  154  N.  Y.  115,  which  holds  that 
§  2555,  authorizing  the  enforcement  of  certain  decrees  of  sur- 
rogates' courts  by  proceedings  for  contempt,  does  not  apply 
to  proceedings  or  decrees  for  the  payment  of  costs  only,  and 
such  decree  of  the  surrogate  is  subject  to  the  general  provision 
of  §  15,  prohibiting  imprisonment  for  non-payment  of  costs 
except  in  actions  specified  therein.  When  the  only  payment 
of  money  directed  to  be  made  by  the  decree  of  the  surrogate's 
court  removing  an  executor  are  costs,  it  cannot  be  enforced 
by  imprisonment.  All  concurring  except  Gray,  J.,  who  holds 
that  the  court  is  committed  to  an  opposite  view  in  Matter  of 
Dissosway,  91  N.  Y.  235.  The  granting  of  an  order  under  §  2555 
is  in  the  discretion  of  the  surrogate,  but  this  discretion  should 
not  be  exercised  in  favor  of  a  delinquent  executor  who  has  been 
directed  to  make  payment  from  the  money  in  his  hands  and  who 
has  disobeyed  such  direction,  unless  under  extraordinary  circum- 
stances. The  state  of  facts  which,  pending  one's  imprisonment 
in  contempt  proceedings,  would  justify  his  discharge,  would 
equally  justify  a  denial  of  the  application    for  his  commitment. 


6o2  CIVIL   CONTEMPT. 


Art.  3.     When  Punished  Summarily. 


Matter  of  Battle,  10  St.  Rep.  667,  A  surrogate  may  make  an 
order  directing  executor  to  pay  money  in  his  hands  after  a  decree 
entered  upon  accounting,  and  may,  if  he  neglects  to  comply  with 
the  order,  and  if  it  does  not  appear  that  execution  has  been 
issued,  arrest  the  executor  on  attachment.  The  executor,  on  the 
return  of  the  attachment,  may  show  cause  against  his  commit- 
ment.    Saltus  V.  Saltus,  2  Lans.  9.  / 

ARTICLE  III. 
When  Punished   Summarily.    §§  2267,  2268. 

§  ^2Q1.  When  punishment  may  be  summary. 

Where  the  offence  is  committed  in  the  immediate  view  and  presence  of  the  court, 
or  of  the  judge  or  referee,  upon  a  trial  or  hearing,  it  may  be  punished  summarily. 
For  that  purpose,  an  order  must  be  made  Ijy  the  court,  judge,  or  referee,  stating  the 
facts  which  constitute  the  offence,  and  bring  the  case  within  the  provisions  of  this 
section,  and  plainly  and  specifically  prescribing  the  punishment  to  be  inflicted  there- 
for. 

2  R.  S.  535,  §2(2  Edm.  554)  ;  see  §  1018. 

g  2268.  When  warrant  to  commit  may  issue  without  notice. 

Where  the  offence  consists  of  a  neglect  or  refusal  to  obey  an  order  of  the  court, 
requiring  the  payment  of  costs,  or  of  a  specified  sum  of  money,  and  the  court  is  satis- 
fied, by  proof,  by  affidavit,  that  a  personal  demand  thereof  has  been  made,  and  that 
payment  thereof  has  been  refused  or  neglected ;  it  may  issue,  without  notice,  a  war- 
rant to  commit  the  offender  to  prison,  until  the  costs  or  other  sum  of  money,  and  the 
costs  and  expenses  of  the  proceeding,  are  paid,  or  until  he  is  discharged  according  to 
law. 

2  R.  S.  535,  §  4.  am'd  by  L.  1847,  ch.  390,  §  2  (4  Edm.  630). 

A  plain  line  of  distinction  is  drawn  between  proceedings  for  a 
contempt  occurring  in  the  presence  of  a  judge,  and  the  facts  con- 
stituting which  are  certified  by  him,  and  cases  of  professional 
misconduct  out  of  the  presence  of  the  court,  where  the  actual 
truth  is  a  matter  of  evidence.  In  the  former  class  of  cases  it  is 
held  that  the  facts  embodied  in  the  order  of  the  judge  must  be 
taken  as  true.  In  the  latter  the  right  of  review  is  asserted,  not 
only  where  there  had  been  want  of  jurisdiction,  but  where  the 
court  below  had  decided  erroneously  on  the  testimony.  Its  di.s- 
cretion  is  not  unlimited,  and  while  not  to  be  overruled  in  cases  of 
doubt,  is  yet  subject  to  review.  Matter  of  E/dridge,  82  N.  Y.  161. 
As  to  what  constitutes  a  criminal  contempt,  see  People  v.  Oyer 
and  Terminer,  loi  N.  Y.  245.  An  order  made  by  the  court  is 
a  sufficient  commitment  where  the  contempt  has  been  committed 
in  the  presence  of  the  court,  and  it  appears  it  should  direct  the 


CIVIL   CONTEMPT.  603 


Art.  3.     When  Punished  Summarily, 


sheriff  to  take  him  into  custody  and  confine  hinn,  and  interroga- 
tories do  not  seem  to  be  necessary.  Matter  of  Percy,  2  VizXy, 
530.  Where  a  witness  summoned  before  the  grand  jury  declined 
to  answer,  and  after  the  court  had  ruled  the  question  proper  he 
repeated  his  refusal,  it  was  held  to  be  a  contempt  in  the  imme- 
diate view  and  presence  of  the  court,  so  that  no  affidavit  or 
further  evidence  was  needed  for  commitment.  Matter  of  Hackley, 
24  N.  Y.  74.  In  the  latter  case  no  interrogatories  were  pro- 
pounded, and  the  following  precedent  was  held  sufficient.  It  will 
be  noted  it  was  a  case  of  criminal  contempt.  The  provisions  of 
§  2267  seem  applicable  to  an  criminal  contempt  only,  despite 
the  statement  of  the  revisers  that  no  attempt  is  made  to  provide 
for  the  punishment  of  such  contempts,  since  this  is  practically 
the  only  class  of  contempts  committed  in  view  of  the  court. 

Before  an  attachment  can  issue  for  non-compliance  with  a  judg- 
ment or  order,  it  must  be  distinctly  settled  by  the  court  or  referee 
what  the  party  can  properly  be  required  to  do.  Sutton  v.  Davis, 
6  Hun,  237,  appeal  dismissed,  64  N.  Y.  633  ;  People  v.  Alexander, 
3  Hun,  211.  A  precept  under  this  section  may  be  issued  ^;r/«r/^, 
and  without  reference  to  the  ability  of  the  party  to  pay  the 
money,  and  whether  his  disobedience  was  wilful  or  not.  People 
V.  Cmdes,  4  Keyes,  38;  In  re  Kelly,  62  N.  Y.  198;  Clark  v. 
Bininger,  75  id.  344.  A  demand  is  necessary  before  contempt 
proceedings  can  be  taken  under  this  section  by  the  person  enti- 
tled to  the  moneys,  or  some  person  authorized  by  him,  and  it  is 
properly  made  of  the  person  sought  to  be  punished.  If  this  is 
not  done  proceedings  will  be  set  aside.  Fischer  v.  Raab,  58  How. 
221.  Where  a  receiver  Avilfully  refused  to  obey  an  order  of  the 
court  directing  him  to  pay  over  moneys  in  his  hands  as  such,  it  is 
the  proper  practice  to  grant  an  order  to  show  cause,  and  give  the 
receiver  an  opportunity  to  be  heard  ;  and  there  must  be  an  adju- 
dication that  he  is  guilty  of  misconduct  before  he  can  be 
punished.  So  held  under  Revised  Statutes.  Clark  v.  Bininger, 
75  N.  Y.  344.     See  §  2269  for  form  of  affidavit. 

To  punish  a  person  for  contempt  under  §  2268  for  non-payment 
of  money  ordered  to  be  paid  by  the  court,  "  the  personal 
demand "  required  by  the  section,  to  be  proved  by  affidavit, 
must  be  a  demand  by  or  on  behalf  of  the  party  to  whom  the 
order  requires  payment  to  be  made.  Matter  of  Oilman,  15  St. 
Rep.  718.     In  any  case  before  a  person  can  be  punished  for  a 


604  CIVIL   CONTEMPT. 


Art.  3.     When  Punished  Summarily. 


contempt  in  disobeying  an  order,  he  must  have  had  notice  of  it 
and  an  opportunity  to  become  acquainted  with  its  provisions, 
and  a  demand  must  have  been  made  upon  him  to  do  the  thing 
wliich  the  order  required  of  him  ;  therefore,  an  order  appointing 
a  receiver  of  the  property  of  a  judgment  debtor  which  contains 
no  requirement  that  the  debtor  deHver  his  property  to  the  re- 
ceiver, and  no  demand  for  its  delivery  has  been  made,  the  court 
has  no  power  subsequently  to  grant  an  order,  on  the  instance  of 
the  receiver  requiring  the  judgment  debtor,  forthwith  to  turn  over 
to  the  receiver  certain  property,  or  in  the  alternative  that  the 
debtor  show  cause  why  he  should  not  be  punished  for  a  con- 
tempt ;  nor  can  the  court,  upon  the  return  day  of  such  order, 
adjudge  the  debtor  to  be  in  contempt.  Bradbury  v.  Bliss,  23 
App.  Div.  607. 

Precedent  for  Warrant  to  Commit  for  Non-Payment  of  Money. 

The  People  of  the  State  of  New  York  to  the  Sheriff  of  the  County  of 
Albany,  greeting  : 

Whereas,  By  affidavit  of  John  Cromwell,  it  appears  that  on  the 
5th  day  of  May,  1887,  an  order  was  granted  in  the  Supreme  Court 
commanding  Marinda  Wheeler  to  appear  and  answer  concerning  her 
property  in  an  action  in  which  John  Cromwell  was  plaintiff  and  said 
Marinda  Wheeler  defendant,  in  which  an  execution  had  issued  to 
the  sheriff  of  Albany  County,  where  said  Marinda  Wheeler  then  re- 
sided, on  a  judgment  obtained  against  her  in  the  Supreme  Court  in 
said  county  for  the  sum  of  $2,150  in  said  action,  which  judgment 
had  been  duly  docketed  ;  and 

Whereas,  The  said  ^larinda  Wheeler  appeared  before  Charles  J. 
Buchanan,  Esq.,  a  referee  appointed  for  that  purpose,  and  answered 
concerning  her  property  ;  and 

Whereas,  It  appeared  that  she  had  in  her  hands  the  sum  of  $850, 
applicable  to  the  payment  of  said  judgment,  and  an  order  was  duly 
made  on  the  ist  day  of  June,  1887,  commanding  and  directing  her, 
the  said  Marinda  Wheeler,  to  pay  over  said  sum  to  said  plaintiff  on 
said  judgment,  or  that  in  default  thereof  an  attachment  issue  ;  and 

Whereas,  The  said  order  was  duly  served  on  said  Marinda  Wheeler 
on  the  3d  day  of  June,  1887,  and  the  said  moneys  demanded  by  the 
plaintiff,  as  appears  by  due  proof  thereof,  and  the  said  Marinda 
Wheeler  neglected  and  refused,  and  still  neglects  and  refuses,  to  pay 
over  said  moneys  or  any  part  thereof  :  Now,  therefore,  we  command 
you  to  arrest  the  said  Marinda  Wheeler,  if  she  shall  be  found  in  your 
bailiwick,  and  commit  her  to  the  county  jail  of  Albany  County,  until 
the  said  sum  of  $850  is  paid.  You  are  to  make  return  under  your 
hand  of  the  manner  in  which  you  have  executed  this  writ,  and  have 
you  then  and  there  this  writ. 


CIVIL   CONTEMPT.  6o$ 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


Witness,  Hon.  A.  B.  Parker,  Justice  of  the  Supreme  Court,  Al- 
[l.  s.]       bany,  June  5,  1887.  ROBERT  H.    MOORE, 

E.    D.   RONAN,  C/erk." 

Atforney  for  Plaintiff. 
Indorsed  : — "Let  the  within  writ  of  attachment  issue. 

"A.   B.   PARKER, 

''Justice  Supreme  Court." 

The  warrant  should  be  accompanied  by  a  formal  order  as  fol- 
lows : 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house  in 

the  city  of  Albany,  on  the  5th  day  of  June,  1887  : 
Present  : — Hon.   A.    B.   Parker,  Justice. 


The  People  tx  ret.  John  Cromwell, 

agst. 
Marinda  Wheeler. 


It  appearing  by  the  report  of  Charles  J.  Buchanan,  Esq.,  the  ref- 
eree in  supplementary  proceedings  in  this  action,  and  the  affidavit 
of  John  Cromwell,  plaintiff,  that  the  defendant  has  in  her  possession, 
applicable  to  the  payment  of  the  judgment  herein,  the  sum  of  $850, 
which  she  refuses  to  apply  thereon,  although  ordered  so  to  do,  and 
proof  of  service  of  such  order  and  demand  of  payment  having  been 
made  and  filed  : 

Now  on  motion  of  E.  D.  Ronan,  attorney  for  plaintiff,  it  is  ordered, 
that  a  warrant  issue  against  said  Marinda  Wheeler,  as  for  a  contempt, 
under  and  by  virtue  of  §  2268  of  the  Code  of  Civil  Procedure  to 
commit  her  to  prison  till  said  sum  is  paid. 

Enter  in  Albany  County.  A.   B.    PARKER, 

Justice  Supreme    Court. 

ARTICLE  IV. 

Manner  of  Commencing  the  Proceeding. 

§§  2269-2279,  inclusive. 

Sub.     I.  By  whom  process  issued.    §§  2271,  2272. 

2.  Order   to   show  cause  and  proceedings  thereon.      §§  2269,  sub.  i, 

2270,  2273. 

3.  Warrant   when  issued  and  proceedings  thereon.      §§  2269,  sub.  2, 

2278,  2274,  2275'  --76,  2277,  2279. 

Sub.    I.    By  Whom  Process  Issued.      §§  2271,  2272. 

,i;  2271.  Order  or -warrant ;  when  granted,  out  of  court. 

Where  the  order  to  show  cause,  or  the  warrant,  is  returnable  before  the  court,  it 
may  be  made,  or  issued,  as  prescribed  in  the  last  section  but  one,  by  any  judge  author- 
ized to  grant  an  order  without  notice,  in  an  action  pending  in  the  court;  and  it  must 
be  made  returnable  at  a  term  of  the  court,  at  which  a  contested  motion  may  be  heard. 


6o6  CIVIL   CONTEMPT. 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


§  2272.  Id. ;  when  contempt  was  committed  before  a  referee. 

An  order  to  show  cause  may  be  made,  or  a  warrant  may  be  issued,  as  prescribed  in 
§  2269  of  tiiis  act,  by  a  referee  appointed  by  the  court,  where  the  offence  is  committed 
upon  the  trial  of  an  issue  referred  to  him,  or  consists  of  a  witness's  non-attendance,  or 
refusal  to  be  sworn  or  to  testify,  before  him.  The  order  or  warrant  may,  in  the  discre- 
tion of  the  referee,  be  made  returnable  before  him,  or  before  the  court.  Where  it  is 
made  returnable  before  the  referee,  he  has  all  the  power  and  authority  of  the  court, 
■with  respect  to  the  motion  of  special  proceeding,  instituted  thereby. 

See  §  1018. 

It  was  held  previous  to  the  enactment  of  this  section,  in 
Lathrop  v.  Clapp,  40  N.  Y.  328,  that  upon  an  examination  under 
supplementary  proceedings  after  judgment,  where  it  appears  that 
the  judgment  debtor  has  transferred  property  to  a  witness,  that 
the  latter  was  bound  to  answer  all  questions  touching  the  trans- 
fer, and  upon  his  refusal  to  answer,  he  was  liable  to  be  punished 
for  a  contempt.  The  proceedings  were  under  §  302  of  the  Code 
of  Procedure,  and  the  order  to  punish  the  witness  for  con- 
tempt might  be  made  by  a  judge  out  of  court,  where  the  pro- 
ceeding was  pending  before  a  referee,  and  need  not  state  that 
the  proceeding  had  impeded,  impaired,  prejudiced,  or  defeated 
the  plaintiff's  remedy.  In  Nay  lor  v.  Nay  lor,  32  Hun,  228,  it  is 
held  that  the  referee  may  make  an  order  to  show  cause,  return- 
able before  the  court,  and  that  the  court  may  then  take  cogni- 
zance of  the  matter,  and  has  power  to  proceed  in  the  premises. 

A  referee  appointed  to  hear  and  report  evidence  may  punish 
for  a  contempt.  People  ex  rel.  v.  Miller,  7  Misc.  7,  59  St.  Rep. 
202,  29  Supp.  305. 

A  notary  public  appointed  by  a  foreign  court  a  commissioner 
to  take  testimony  here,  for  use  in  the  foreign  court,  has  no 
power  to  commit  a  witness  for  contempt  in  refusing  to  answer 
pertinent  questions,  but  such  power  can  only  be  exercised  by  a 
court.  People  ex  rel.  McDonald  v.  Lenbiseher,  23  Misc.  495,  51 
Supp.  735,  85  St.  Rep.  735,  27  Civ.  Pro.  296.  Sections  854  and 
855  of  the  Code  do  not  apply  to  the  case  of  a  recalcitrant  witness 
before  a  commissioner  appointed  to  take  testimony  to  be  used  in 
an  action  in  another  State,  as  that  is  provided  for  by  §  920. 
The  justice  who  issued  a  subpoena  requiring  a  witness  to  appear 
before  a  commissioner  appointed  by  a  foreign  court  to  take 
testimony  in  this  State  has  no  power  to  hear  or  determine  an 
application  to  punish  a  witness  for  refusing  to  answer  questions 
upon  his  examination,  but  such  power  is  confined  to  the  officer 


CIVIL   CONTEMPT.  6o7 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


before  whom  he  was  required  to  appear.  Matter  of  Scarls,  155 
N.  Y.  133,  49  N.  E.  Rep.  938,  27  Civ.  Pro.  192,  reversing  22  App. 
Div.  140,  48  Supp.  60,  82  St.  Rep.  60. 

Sub.   2.    Order  to  Show  Cause  and  Proceedings  Thereon.      §§  2269, 

sub.  I,  2270,  2273. 

§  2269.  Order  to  show  cause,   or  warrant  to  attach  offender. 

The  court  or  judge,  authorized  to  punish  for  the  offence,  may,  in  its  or  his  discre- 
tion, where  the  case  is  one  of  those  specified  in  either  of  the  last  two  sections,  and,  in 
every  other  case,  must,  upon  being  satisfied,  by  affidavit,  of  the  commission  of  the 
offence,  either 

Make  an  order  requiring  the  accused  to  show  cause  before  it,  or  him,  at  a  time 
and  place  therein  specified,  why  the  accused  should  not  be  punished  for  the  alleged 
offence,  or    *    *    *     * 

§  2270.  Notice  to  delinquent  officer  to  show  cause. 

Where  it  is  prescribed  by  law,  or  by  the  general  rules  of  practice,  that  a  notice  may 
be  served  in  behalf  of  a  party,  upon  a  sheriff  or  other  person,  requiring  him  to  return 
a  mandate,  delivered  to  him,  or  to  show  cause,  at  a  term  of  a  court,  why  he  should 
not  be  punished,  or  why  an  attachment  should  not  be  issued  against  him,  for  a  con- 
tempt of  the  court ;  the  party,  in  whose  behalf  the  notice  is  served,  may,  at  the  time 
specified  therein,  file  with  the  clerk,  proof,  by  affidavit  or  other  written  evidence,  of 
the  delivery  of  the  mandate  to  the  accused ;  of  the  default  or  other  act,  upon  the  oc- 
currence of  which,  he  was  entitled  to  serve  the  notice  ;  of  the  service  of  the  notice  ; 
and  of  the  failure  to  comply  therewith.  Thereupon  the  proceedings  are  the  same,  as 
where  an  order  to  show  cause  is  made,  and  it,  and  a  copy  of  the  affidavits  upon  which 
it  is  granted,  are  served  upon  the  accused. 

§  2273.  Effect  of  order  to  show  cause,  and  of  warrant. 

An  order  to  show  cause  may  be  made,  either  before  or  after  the  final  judgment  in 
the  action,  or  the  final  order  in  the  special  proceeding.  It  is  equivalent  to  a  notice  of 
motion  ;  and  the  subsequent  proceedings  thereupon  are  taken  in  the  action  or  special 
proceeding,  as  upon  a  motion  made  therein.  A  warrant  of  attachment  is  a  mandate, 
whereby  an  original  special  proceeding  is  instituted  against  the  accused,  in  behalf  of 
the  people,  upon  the  relation  of  the  complainant. 

Before  one  can  be  punished  for  a  contempt,  the  statute  requires 
either  an  order  to  show  cause  why  such  punishment  should  not 
be  inflicted,  or  that  a  warrant  of  attachment  should  issue  to  bring 
him  before  the  court,  and  whichever  mode  of  procedure  is 
adopted,  it  is  necessary  that  certain  facts  should  be  made  to 
appear  to  the  court.  These  facts  are  specified  under  §  2269,  and 
one  of  them  is  that  the  judge  must  be  satisfied  by  affidavit  of 
the  ofTence,  until  that  has  been  done,  no  order  to  .show  cause 
can  be  issued.  No  offence  can  be  committed  until  the  order 
directing  the  act  to  be  done  has  been  brought  to  the  attention 
of  the  defendant,  and  demand  has  been  made  upon  him  that  it 
shall  be  done,  and  he  is  not   guilty  of  contempt  of  court  until 


6o8  CIVIL   CONTEMPT. 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


after  that  demand  has  been  refused  or  neglected.  Bradbury  v. 
Bliss,  23  App.  Div.  607.  An  order  to  show  cause  why  a  party 
should  not  be  punished  for  a  contempt  of  court  cannot  be  made 
until  the  contempt  has  been  committed.  Bradbury  v.  Bliss,  23 
App.  Div.  606,  48  Supp.  912,  82  St.  Rep.  912. 

The  order  to  show  cause  operates  as  a  notice  of  motion  made 
in  the  action,  and  the  papers  must  be  entitled  in  the  action  or 
proceeding.  The  warrant  in  the  first  instance  institutes  a  new 
special  proceeding,  which  may  be  entitled  "  The  People  ex  rel. 
Theophelia  G.  Townsend,  agst.  Oliver  B.  Whitney."  Where  the 
order  was  made  requiring  the  defendant  to  appear  at  a  certain 
time  and  place  specified,  to  show  cause  why  he  should  not  be 
attached  for  a  contempt,  on  the  return  of  which  an  order  was 
made  adjudging  him  guilty  of  a  contempt,  and  directing  his 
punishment  therefor,  and  it  did  not  appear  that  he  was  misled 
or  failed  to  appear  in  consequence  of  the  use  of  the  term  attached 
in  place  ol punished,  it  was  held  that  as  the  use  of  the  term  did 
not  appear  to  have  prejudiced  the  defendant,  the  order  should 
be  affirmed.     People  v.  Kenny,  2  Hun,  346. 

There  must  be  an  affidavit  in  civil  cases;  the  statute  is  express. 
Ackroyd  v.  Ackroyd,  3  Daly  38.  The  party  is  brought  into  court 
by  attachment  either  absolute  or  nisi.  Jackson  v.  Smith,  5  Johns. 
117;  Matter  of  Smet hurst,  2  Sandf.  724;  Matter  of  Vanderbilt, 
4  Johns.  Ch.  57.  The  proceediwg  may  be  by  attachment  for 
contempt,  or  order  to  show  cause  why  the  party  should  not  be 
punished  for  contempt.  In  either  case  it  must  be  shown  that 
the  party  is  in  contempt,  and  where  the  proceeding  is  by  order 
to  show  cause  the  papers  on  which  the  application  is  founded,  or 
so  much  of  them  as  are  not  already  in  possession  of  the  accused, 
must  be  served  on  him  or  his  solicitor,  such  length  of  time  before 
the  hearing,  as  the  order  directs.  The  service  of  a  mere  notice 
of  motion  is  not  sufficient  ;  the  party  must  be  brought  into  court 
by  the  service  of  an  order  to  show  cause  or  an  attachment. 
Sandford  v.  Sandford,  40  Hun,  540.  Either  an  attachment  must 
issue  or  an  order  be  granted  to  show  cause  why  the  party  should 
not  be  punished  for  misconduct,  otherwise  the  proceedings  are 
invalid.  Fall  Brook  Co.  v.  Heckscher,  6  State  Rep.  676.  If  a 
party  fails  to  appear,  or  shows  no  sufficient  cause,  the  court  may 
make  a  final  order  of  punishment  for  contempt.  If  the  contempt 
is  denied  the   court   may  discharge   the  order  to  show  cause  or 


CIVIL   CONTEMPT.  6o(J 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


require  interrogatories  on  the  coming  in  of  which  the  court  acts. 
So  where  the  procedure  is  by  attachment,  there  must  be  interroga- 
tories, unless  the  accused  admit  the  contempt  as  charged.  Albany 
City  Ba?ik  v.  ScheuierJwrn,  9  Paige,  372.  It  was  held,  in  Dunford 
V.  Weaver,  84  N.  Y.  445,  that  the  process  need  not  recite  all  the 
facts  and  proceedings  necessary  to  confer  jurisdiction,  and  in 
Park  V.  Park,  80  N.  Y.  156,  it  was  held  that  where  there  was  an 
indorsement  on  the  process  signed  by  the  clerk,  showing  it  was 
issued  by  special  order  of  the  court,  it  would  be  presumed  an 
order  had  been  entered,  but  in  any  event,  as  the  objection  was 
not  raised  below,  it  could  not  be  raised  in  Court  of  Appeals. 
Much  conflict  is  found  in  the  decisions  previous  to  the  Code  of 
Civil  Procedure,  as  to  whether  the  proceedings  should  be  entitled, 
as  in  the  action  or  proceeding  in  which  the  contempt  originated, 
or  as  a  new  special  proceeding.  This  question  is  definitely  settled 
by  §  2273,  which  provides  that  a  warrant  of  attachment  is  a  man- 
date whereby  an  original  special  proceeding  is  instituted  against 
the  accused  in  behalf  of  the  people,  upon  the  relation  of  the 
complainant.  In  following  the  precedents  hereafter  in  entitling 
papers,  this  distinction  must  be  carefully  borne  in  mind,  and  the 
title  must  be  adapted  as  to  the  original  action  or  a  new  proceed- 
ing, as  it  may  be  commenced  by  warrant  or  order,  up  to  the  time 
of  the  issuing  of  the  warrant.  It  then  becomes  a  special  proceed- 
ing, and  must  be  so  entitled,  however  commenced.  Matter  of 
Dissosway,  91  N.  Y.  235.  It,  however,  leaves  open  the  question 
as  to  how  the  order  should  be  entitled  which  directs  the  warrant 
to  issue.  It  would  seem  proper  to  entitle  the  papers  up  to  the 
warrant  in  the  original  suit  and  proceeding.  See  Folgerv.  Hoog- 
land,  5  Johns.  235  ;  also  Eric  R.  R.  Co.  v.  Ramsey,  45  N.  Y.  637  ; 
and  Siidloiv  v.  Knox,  7  Abb.  (N.  S.)  411,  Court  of  Appeals.  An 
order  to  show^  cause  to  punish  for  a  contempt,  made  by  a  county 
judge,  returnable  after  expiration  of  his  term  of  office,  may  be 
heard  and  decided  by  his  successor  in  office.  Ganeniaii  v.  Berry, 
34  Hun,  138.  It  is  said  in  Whitman  v.  Haines,  21  St.  Rep.  41, 
by  Brady,  J.,  at  page  43,  that  in  procedure  by  order  to  show 
cause,  the  caption  of  the  action  is  properly  preserved,  that  it  is 
only  where  the  proceeding  is  by  attachment  that  the  contrary  is 
true.  Where  the  defendant  fails  to  object  to  the  examination 
of  witnesses  before  court,  but  on  the  contrary  cross-examines 
them,  he  must  be  held  to  have  consented  to  the  practice  adopted, 
39 


6io  CIVIL   CONTEMPT. 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


and  cannot  complain  thereof  on  appeal.  King  v.  Barnes,  113  N. 
Y.  476,  23  St.  Rep.  263,  affirming  51  Hun,  557,  22  St.  Rep.  54,  4 
Supp.  251.  As  to  power  of  referee  appointed  under  §1118  and 
of  the  court,  respectively,  to  punish  for  contempt,  see  Nailor  v. 
Nailor,  32  Hun,  228.  Where  an  order  has  been  made  requiring 
a  husband  to  pay  alimony  theretofore  ordered,  and  directing  that 
if  he  fails  to  do  so  a  commitment  issue  against  him  as  for  con- 
tempt, it  is  not  required  that  there  be  served  with  the  final  order 
the  affidavit  or  proof  recited  therein  and  notice  for  an  applica- 
tion for  such  order  be  given.  Section  2274,  requiring  affidavit  and 
proof  upon  which  the  order  to  punish  for  contempt  shall  be 
served,  refers  to  affidavit  upon  which  a  warrant  of  attachment  is 
granted  to  bring  a  party  before  the  court  to  answer  for  an  alleged 
contempt.  Such  notice  of  application  may  be  dispensed  with 
where  the  contempt  consisted  of  neglect  or  refusal  to  pay  a 
specified  sum  of  money  as  required  by  an  order  of  the  court. 
People  ex  rel.  Clark  v.  Grant,  13  Civ.  Pro.  184. 

Affidavit  for  Order  to  Show  Cause. 

SURROGATE'S  COURT— County  of  Rockland. 


In  the  Matter  of  the  Apphcation  of  Isaac  E.    I  t  c^  n  y  77^ 
Pye  ^/' «/.,  creditors,  etc.  \    ^'^     '     ' ' '  ^' 


City  and  County  of  New  York,  ss.  : 

Julius  Henry  Cohen,  being  duly  sworn,   says  : 

I  am  a  clerk  in  the  office  of  Mannice,  Abbot  &  Perry,  Esqs.,  who 
are  the  attorneys  for  the  petitioners,  and  am  over  the  age  of  21 
years. 

On  the  18th  day  of  January,  1897,  an  amended  final  orderand  de- 
cree was  duly  made  and  entered  removing  Erastus  Van  Houten  from 
his  position  as  executor  of  the  last  will  and  testament  of  Edward  G. 
Van  Houten,  deceased.  I  personally  served  a  certified  copy  of  the 
said  amended  final  order  and  decree  upon  the  said  Erastus  Van 
Houten,  whom  I  knew  to  be  the  executor  named  and  described 
therein.  Said  service  was  made  on  the  i8th  day  of  January,  1897, 
at  the  stable  building  at  Liberty  &  Church  Streets  in  the  village  of 
Nyack  by  the  delivery  to  the  said  Erastus  Van  Houten  personally  of 
said  certified  copy,  of  said  amended  order  and  decree. 

At  the  time  and  place  of  said  service  I  personally  demanded  that 
said  Van  Houten  deliver  to  one  John  Wood  possession  of  the 
property  and  the  estate  of  Edward  O.  Van  Houten,  said  Wood  being, 
as  said  Erastus  Van  Houten  was  duly  informed,  the  duly  authorized 
representative  of  Anna  E.  Van  Houten  and  Delia  Van  Houten,  exec- 


CIVIL   CONTEMPT,  6ll 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


utrices  of  said  Edward  G.  Van  Houten,  deceased,  and  being  pres- 
ent with  me  at  the  time,  and  exhibiting  his  authority  in  writmg, 
which  said  Van  Houten  declined  to  look  at. 

I  demanded  that  he  make  such  delivery  as  aforesaid  of  all  money 
or  property,  or  the  proceeds  thereof,  which  belonged  to  the  estate 
of  said  deceased,  or  which  came  into  his  possession  as  executor,  and 
all  property  belonging  to  the  estate  of  the  said  deceased  then  in  his 
possession,  or  under  his  control,  and  particularly  the  business  as  a 
whole  and'all  of  the  goods  and  chattels  contained  in  the  building 
situate  at  the  place  said  service  was  made,  to  wit,  the  said  stable 
building  where  the  livery  stable  business  was  carried  on  by  Edward 
G.  Van  Houten  in  his  lifetime,  and  all  the  property  belonging  to  the 
estate  which  he  had  removed  from  said  building  ;  and  further  de- 
manded that  he  vacate  the  building  and  cease  from  exercising  any 
control  over  its  contents.  In  spite  of  said  demand  said  Erastiis  Van 
Houten  refuses  to  deliver  to  the  said  authorized  representatives  all 
or  any  part  of  the  property  mentioned  in  the  demand,  and  refuses 
to  vacate  said  building,  and  he  still  persists  in  such  refusal. 

I  had  been  in  the  stable  on  the  12th  day  of  December,  1896,  and 
at  that  time  there  were  ten  carriages  and  other  property  in  the 
stable.  At  the  time  I  made  the  aforesaid  service  and  demand,  the 
stable,  with  the  exception  of  one  or  two  carriages,  was  empty. 

JULIUS  HENRY  COHEN. 

{Acknowledgment). 

Order  to  Show  Cause  why  Defendant  should  not  be  Punished 

for  Contempt. 

NEW  YORK  SUPREME  COURT— City  and  County  of  New  York. 


Archibald  Sheffield  et  al., 

agst. 

John  T.  Mitchell  et  al. 


'  21  App.  Div.  518. 


On  reading  the  annexed  affidavits  of  and  ,  and  upon 

the  order  to  show  cause  herein,  dated  March  16,  1897,  and  the 
summons  and  complaint  and  the  affidavits  upon  which  said  order  to 
show  cause  was  granted,  and  the  affidavits  of  service  thereof  upon 
the  defendants,  verified  March  20,  1897,  and  March  24,  1897,  and 
the  order  continuing  the  injunction  herein,  dated  April  13  1897,  all 
duly  filed  in  this  court  on  the  13th  day  of  April.    1897. 

Let  the  defendants  (insert  names)  show  cause  at  a  Special  Term 
of  this  court  to  be  held  at  part  i  in  the  county  court-house  in  the 
city  of  New  York  on  the  7th  day  of  June,  1897,  at  10.30  o'clock  in 
the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard,  why 
they  and  each  of  them  should  not  be  punished  as  for  a  contempt  for 
their  misconduct  in  failing  to  obey  the  injunction  orders  of  March 
16,  1897,  and  April  13,  1897,  entered  herein  as  alleged  in  the  an- 
nexed affidavits,  and  why  their  answers  herein  should  not  be  stricken 


6l2  CIVIL   CONTEMPT. 


Art.  4,     Manner  of  Commencing  the  Proceeding 


out  and  a  reference  directed  to  take  proof  ex  parte  of  the  matters  al- 
leged in  the  complaint,  and  why  the  plaintiff  should  not  have  such 
other  and  further  relief  as  may  be  just,  with  the  costs  of  this  motion  ; 
and  due  reason  appearing- therefor  let  all  proceedings  herein  on  the 
part  of  the  defendants  be  stayed  until  the  further  order  of  this 
court. 

Let  service  of  a  copy  of  this  order  on  the  above  named  John  T. 
Mitchell  and  Henry  H.  Cooper  personally  on  or  before  the  3d  day 
of  June,   1897,  be  sufficient. 

Dated,  New  York,  May  29,  1897.  F.  SMYTH 


Justici. 


Order  to  Show  Cause. 

SURROGATE'S  COURT— Rockland  County. 

In  the  Matter  of  the  Application  of  ic/i  N  V  771 

Isaac  E.  Pye.  etc.  M54iN.v.773- 


Upon  the  amended  final  order  and  decree  made  and  entered  in 
this  proceeding  on  the  i8th  day  of  January,  1897,  the  affidavits  of 
Julius  Henry  Cohen,  verified  the  20th  day  of  January,  1897,  and  of 
(insert  names  of  all  other  affiants),  and  also  of  John  M.  Perry,  ver- 
ified the  20th  day  of  January,  1897,  showing  due  proof  of  service  of 
a  copy  of  said  order  on  Erastus  Van  Houten,  and  wherefrom  it  fur- 
ther appears  to  the  satisfaction  of  the  court  that  Erastus  Van  Houten 
has  refused  to  obey  the  same,  and  that  the  rights  of  the  petitioners 
may  and  are  defeated,  impaired,  impeded,  and  prejudiced  by  said 
refusal ;  and  upon  the  motion  of  Mannice,  Abbot  &  Perry,  Esqs.,  at- 
torneys for  the  petitioners,  it  is 

Ordered,  that  said  Erastus  Van  Houten  show  cause  at  a  surro- 
gate's court  to  be  held  in  and  for  the  county  of  Rockland  at  the  sur- 
rogate's office  in  the  Commercial  Building  in  the  village  of  Nyack, 
on  the  28th  day  of  January,  1897,  at  3  o'clock  in  the  afternoon,  why 
he  should  not  be  punished  as  for  a  contempt  in  refusing  to  obey  the 
said  amended  order  and  decree  of  this  court,  made  and  entered  on 
the  18th  day  of  January,  1897,  as  aforesaid,  removing  him  as  exec- 
utor and  enjoining  him  from  interfering  with  the  assets  of  the 
estate  of  the  decedent  herein,  and  directing  the  delivery  thereof  as 
therein  ]-)rovi(led,  and  why  the  petitioners  in  this  proceeding  should 
not  have  such  other  and  further  relief  as  to  the  court  shall  seem  just. 

Sufficient  cause  having  been  shown,  service  of  this  order  on  the 
27th  day  of  January,  1897,  before  four  o'clock  in  the  afternoon  of 
that  day  shall  be  sufficient. 

Dated,  Nyack,  N.  Y.,  January  27th,  1897. 

A.  S.  TOMPKINS, 

Surrotrate. 


CIVIL    CONTEMPT.  613 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


Precedent  for  Order  to  Show  Cause. 

{Caption^ 

ULSTER  SURROGATE'S  COURT. 

In  the  Matter  of  the  Estate  of  John  Ferris, 
deceased. 


On  readinsT  and  filing  the  verified  petition  of  Theophelia  G.  Town- 
send,  showing  that  by  a  decree  granted  in  this  matter  in  this  court  on 
the  1 2th  day  of  July,  1886,  Oliver  B.  Whitney,  executor  of  John  J.  Fer- 
ris, deceased,  was  adjudged  to  pay  over  to  her  the  sum  of  $1,200,  from 
funds  in  his  hands,  that  he  has  failed  so  to  do  after  service  of  copy 
of  decree,  and  demand  duly  made,  and  that  execution  thereon  has 
been  returned  unsatisfied  : 

Now,  on  motion  of  Walter  S.  Fredenburgh,  attorney  for  petitioner, 
it  is  ordered  that  said  Oliver  B.  Whitney  show  cause,  at  a  term  of 
this  court,  to  be  held  at  the  surrogate's  office,  in  the  county  of 
Ulster,  on  the  loth  day  of  April,  1887,  at  10  o'clock,  a.  m.,  why  he 
should  not  be  punished  for  such  alleged  offence. 

ALVAH  S.   NEWCOMB, 
Clerk  of  the  Surrogate's  Court. 

Sub.  3.    Warrant  When  Issued  and  Proceedings  Thereon.    §  2269, 
sub.   2,    §§  2278,    2274,    2275,    2276,    2277,    2279. 

§  2269.  Order  to  show  cause,  or  warrant  to  attach  offender. 

The  court  or  judge,  authorized  to  punish  for  the  offence,  may,  in  its  or  his  discre- 
tion, where  the  case  is  one  of  those  specified  in  either  of  the  last  two  sections,  and,  in 
every  other  case,  must,  upon  being  satisfied,  by  affidavit,  of  the  commission  of  the 
offence,  either ;     *    *    *    * 

2.  Issue  a  warrant  of  attachment,  directed  to  the  sheriff  of  a  particular  county,  or, 
generally,  to  the  sheriff  of  any  county  where  the  accused  may  be  found,  commanding 
him  to  arrest  the  accused,  and  bring  him  before  the  court  or  judge,  either  forthwith, 
or  at  a  time  and  place  therein  specified,  to  answer  for  the  alleged  offence. 

^  2278.  When  habeas  corpus  may  issue. 

If  the  accused  is  in  the  custody  of  a  sheriff,  or  other  officer,  by  virtue  of  an  execu- 
tion against  his  person,  or  by  virtue  of  a  mandate  for  any  other  contempt  or  miscon- 
duct, or  a  commitment  on  a  criminal  charge,  a  warrant  of  attachment  cannot  be 
issued.  In  that  case,  the  court,  upon  proof  of  the  facts,  must  issue  a  writ  of  habeas 
corpus,  directed  to  the  officer,  requiring  him  to  bring  the  accused  before  it,  to  answer 
for  the  offence  charged.  The  officer  to  whom  the  writ  is  directed,  or  upon  whom  it 
is  served,  must,  except  in  a  case  where  the  production  of  the  accused  under  a  warrant 
of  attachment  would  be  dispensed  with,  bring  him  before  the  court,  and  detain  him  at 
the  place  where  the  court  is  sitting,  until  the  further  order  of  the  court. 

See  §  2013. 

§  2274.  Copy  affidavit,  etc.,  to  be  served  with  warrant. 

A  copy  of  the  warrant,  and  of  the  affidavit  upon  which  it  is  issued,  must  be  served 
upon  the  accused,  when  he  is  arrested  by  virtue  thereof. 
2  R.  S.  535,  §  3. 


6l4  CIVIL   CONTEMPT. 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


§  2275.  Indorsement  upon  warrant. 

Where  a  warrant  of  attachment  is  issued,  the  court,  judge,  or  referee,  may,  in  its  or 
his  discretion,  by  an  indorsement  thereupon  fix  a  sum,  in  which  the  accused  may  give 
an  uudertaking  for  his  appearance  to  answer. 

Id.  §  10,  am'd. 

§  2276.  Warrant;  how  executed. 

If  an  indorsement  is  not  made  upon  the  warrant,  as  prescribed  in  the  last  section  ; 
or  if  such  an  indorsement  is  made  and  an  undertaking  is  not  given,  as  prescribed  in  the 
next  section  ;  the  sheriff  after  making  the  arrest,  as  required  by  the  warrant,  must 
keep  the  accused  in  his  custody,  until  the  further  direction  of  the  court,  judge,  or 
referee.  Where,  from  sickness  or  any  other  cause,  the  accused  is  physically  unable  to 
attend  before  the  court,  judge,  or  referee,  that  fact  is  a  sufficient  excuse  to  the  sheriff 
for  not  producing  him  as  required  by  the  warrant.  In  that  case,  the  sheriff  must  pro- 
duce him,  as  directed  by  the  court,  judge,  or  referee,  after  he  becomes  able  to  attend. 
The  sheriff  need  not,  in  any  case,  confine  the  accused  in  prison,  or  otherwise  restrain 
him  of  his  liberty,  except  as  far  as  it  is  necessary  so  to  do,  in  order  to  secure  his 
personal  attendance. 

Id.  §§  12,  14,  and  37. 

>?  2277.  Undertaking  to  procure  discharge. 

Where  an  indorsement  is  made  upon  the  warrant,  as  prescribed  in  the  last  section 
but  one,  the  accused  must  be  discharged  from  arrest,  upon  his  executing  and  delivering 
to  the  sheriff,  at  any  time  before  the  return  day  of  the  warrant,  an  undertaking  to  the 
people,  in  the  sum  specified  in  the  indorsement,  with  two  sufficient  sureties,  to  the 
effect  that  he  will  appear,  at  the  time  when,  and  the  place  where,  the  warrant  is  re- 
turnable, and  then  and  there  abide  the  direction  of  the  court,  judge,  or  referee,  as  the 
case  requires.  The  officer,  taking  the  acknowledgment  of  the  undertaking,  must,  if 
the  sheriff  so  requires,  examine  under  oath,  to  a  reasonable  extent,  the  persons  offered 
as  sureties,  concerning  their  property  and  circumstances. 

2  R.  S.  535,  §  13,  am'd. 

§  2279.  Sheriff  to  file  undertaking  with  return. 

The  sheriff  or  other  officer  must  file  the  undertaking,  if  any,  taken  by  him,  with  the 
return  to  the  warrant  or  writ  of  habeas  corpus. 
Id.  §  16. 

Where  the  proceeding  is  commenced  by  notice  of  motion,  in- 
stead of  an  order,  to  show  cause,  or  by  an  attachment,  the  irreg- 
ularity is  cured  by  appearing  and  answering  without  objection. 
An  attachment  has  been  granted  in  the  first  instance  where  an 
evasive  return  was  made  to  writ  of  Jiabcas  corpus.  Matter  of 
Stacy,  10  Johns.  328.  For  enforcing  an  answer  in  equity  where 
the  witness  positively  refuses  to  obey  a  subpoena.  Andrews  v. 
Audrctvs,  2  Johns.  Cas.  109;  also,  see  People  v.  Wilson,  5  Johns. 
368;  Stafford  v.  Hasketh,  i  Wend.  71;  IVorden  v.  Bank  of 
Orange,  id.  94.  The  order  to  show  cause  should  not  be  an  ad- 
judication that  the  defendant  is  guilty  of  the  contempt,  but 
only  an  order  to  bring  him  into  court.  McCrcdie  v.  Senior,  4 
Paige,  378. 


CIVIL   CONTEMPT.  6l$ 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


It  is  said  in  Peo/>/e  v.  King;  9  How.  97,  that  an  attachment 
should  issue  at  once  on  violation  of  an  order  to  pay  over  money. 
A  warrant  of  attachment  should  not  be  granted  ex  parte,  when  the 
only  proof  is  by  an  adverse  party  on  information  and  belief ;  no 
excuse  is  offered  by  the  affidavits  of  parties  having  knowledge  if 
the  facts  are  not  produced.  Sargeant  v.  Warren,  22  Week.  Dig. 
472.  In  contempt  proceedings,  to  collect  a  personal  tax,  a  notice 
of  motion  was  held  proper.  Matter  of  Nichols,  54  N.  Y.  62.  But 
see  language  of  section  as  it  now  stands,  and  Sandford  v.  Sandford, 
40  Hun,  540.  Attachment  is  the  remedy  against  an  attorney  who 
refuses  to  pay  over  money  which  belongs  to  his  client.  Bowling 
Green  Savings  Bank  v.  Todd,  52  N.  Y.  489.  The  discretion  of  a 
judge  in  fixing  time  within  which  an  attachment  is  returnable  is 
in  the  discretion  of  the  court,  but  reviewable  at  General  Term. 
The  attachment  should  be  returnable  before  the  judge  by  whom 
it  is  granted.  But  error  is  amendable,  and  is  waived  by  giving  a 
bond  to  the  sheriff,  at  least  so  far  as  the  validity  of  the  jjond  is 
concerned.  Kelly  v.  McCormick,  28  N.  Y.  318  ;  Power  v.  Village 
of  Athens,  19  Hun,  169. 

The  proceedings  to  punish  for  contempt  must  betaken  as  pre. 
scribed  by  statute.  They  are  stricti  juris.  The  statute  requires 
that  there  shall  be  served  upon  the  accused  before  he  is  punished 
for  contempt  either  an  order  to  show  cause  why  said  punishment 
should  not  be  inflicted  or  that  there  should  issue  a  warrant  of 
attachment  to  bring  him  before  the  court.  But  whatever  models 
adopted  it  is  necessary  that  certain  facts  shall  be  made  to  appear 
to  the  court.  These  facts  are  specified  in  §  2269,  and  one  is  that 
the  judge  must  be  satisfied  by  affidavit  of  the  commission  of  the 
offence.  Until  this  has  been  done  no  order  to  show  cause  can  be 
issued.  Bradbury  v.  Bliss,  23  App.  Div.  606.  As  to  power  of 
referee  appointed  under  §1118  and  of  the  court,  respectively,  to 
punish  for  contempt,  see  Naylor  v.  Naylor,  32  Hun,  228. 

Precedent  for  Affidavit. 

ULSTER  SURROGATE'S  COURT. 


In  the     Matter  of  the  AppUcation   to   punish  I  1..   ,, 

Oliver  B.  Whitney  for  a  contempt.  f   75  J>^-  V.  425 


To  the  Surrogate's  Court  of  tlie  County  of  Ulster  : 
That  petition  of  Theophelia  G.   Townsend,  of  Newburgh,  shows 


6l6  CIVIL   CONTEMPT. 

Art.  4.     Manner  of  Commencing  the  Proceeding. 


that  she  was  a  legatee  under  the  will  of  John  J.  Ferris,  deceased, 
late  of  said  county. 

That  said  proceedings  were  had  in  the  estate  of  said  deceased ; 
that  one  Oliver  B.  Whitney  was  duly  appointed  executor  thereof  on 
the  loth  day  of  May,  1884,  and  entered  on  the  duties  of  his  trust  and 
acted  as  such  ;  that  on  the  12th  day  of  July,  1886,  he  made  and  filed 
his  account  as  such  executor  in  Ulster  surrogate's  court  on  notice  to 
all  parties  interested,  and  a  decree  was  duly  entered  in  said  surro- 
gate's court,  on  such  judicial  settlement,  in  and  by  which  your 
petitioner  was  adjudged  to  be  entitled  to  receive  the  sum  of  $1,200 
as  and  for  her  said  legacy,  and  said  Oliver  B.  Whitney  was  directed 
to  pay  the  same  out  of  funds  found  to  be  in  his  hands  as  such  ex- 
ecutor. That  said  decree  was  duly  docketed  in  Ulster  County  clerk's 
office,  and  execution  issued  thereon  to  the  sheriff  of  Ulster  County, 
where  said  Whitney  then  resided  and  now  resides,  and  was  returned 
wholly  unsatisfied.  That  thereupon  a  certified  copy  of  said  decree 
of  Ulster  surrogate's  court  was  served  on  said  Whitney  by  the  hus- 
band of  your  petitioner,  proof  of  which  is  hereto  annexed,  and  pay- 
ment of  said  moneys  demanded  on  behalf  of  your  petitioner. 

That  said  Whitney  refused  and  neglected,  and  still  refuses  and 
neglects,  to  pay  over  said  moneys,  or  any  part  thereof,  and  your 
petitioner,  therefore,  prays  that  a  warrant  issue  out  of  and  under  the 
seal  of  this  court,  directed  to  the  sheriff  of  the  county  of  Ulster, 
commanding  him  to  arrest  the  said  Oliver  B.  Whitney,  and  bring 
him  before  this  court  forthwith,  or  at  a  time  to  be  specified,  to 
answer  for  his  said  offence. 

THEOPHELIA  G.  TOWNSEND. 

{Add  verification.^ 

Precedent  for  "Warrant  to  Attach. 

TJie  People  of  the  State  of  New  York  to  the  Sheriff  of  the  County  of 
Ulster,  greeting  : 
Whereas,  It  appears  by  the  verified  petition  of  Theophelia  G. 
Townsend,  that  in  and  by  a  decree  of  this  court,  duly  made  and  en- 
tered on  the  1 2th  day  of  July,  1886,  Oliver  B.  Whitney,  of  the  town 
of  Marlborough,  in  the  county  of  Ulster,  was  adjudged  and  directed 
to  pay  over  to  said  petitioner  the  sum  of  $1,200,  being  the  amount 
of  a  legacy  due  her  under  the  will  of  John  J.  Ferris,  deceased, 
and  that  the  said  Oliver  B.  Whitney  holds  said  moneys  as  executor 
of  said  Ferris,  that  a  copy  of  said  decree  has  been  duly  served  upon 
him  and  demand  of  payment  of  said  legacy  made  from  him,  and 
also  that  an  execution  duly  issued  on  said  decree  has  been  returned 
wholly  unsatisfied,  and  that  the  said  sum  of  $1,200  remains  wholly 
unpaid,  and  the  said  Oliver  B.  Whitney  neglects  and  refuses  to  pay 
over  the  same  or  any  part  thereof  :  Now,  therefore,  we  command 
you  to  arrest  the  said  Oliver  B.  Whitney,  if  he  shall  be  found  in 
your  bailiwick,  and  bring  him  before  a  surrogate's  court,  to  be  held 
at  the  surrogate's  office,  in  the  city  of  Kingston,  on  the  loth  day  of 
April,  1887,  at  ten  o'clock  in  the  forenoon  of  that  day,  to  answer 
unto  us  for  his  alleged  offence,  in  refusing  to  pay  over  said  legacy 


CIVIL    CONTEMi'T.  617 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


due,  and  directed  to  be  paid  as  aforesaid,  to  Theophelia  G.  Town- 
send,  the  petitioner,  and  you  are  to  make  return  on  that  day  to  the 
said  surrogate's  court,  by  a  certificate  under  your  hand  of  the  man- 
ner in  which  you  have  executed  this  writ,  and  have  you  then  and 
there  this  writ, 

Witness,  Hon.  O.  P.  Carpenter,  surrogate  at  the  city  of  King- 
[l.  s.l       ston,  on  the  ist  day  of  April,  1887. 

WALTER  S.  FREDENBURGH,         O.  P.  CARPENTER, 

Attorney  for  Petiiw?ier.  Surrogate. 

Indorsed  pursuant  to  §  2275.  as  follows: — "Let  the  said  Oliver 
B.  Whitney  give  an  undertaking  for  his  appearance  to  answer  upon 
the  within  attachment  in  the  sum  of  $2,400." 

O.   P.   CARPENTER, 

Surrogate. 

For  other  precedents  for  warrant  of  attachment,  see  Criminal 
Contempt. 

Copies  of  the  affidavits  upon  which  the  papers  are  granted 
should  be  served.  Matter  of  Smethiirst,  2  Sandf .  724 ;  Ward  v. 
Arcnson,  10  Bosw.  589.  It  is  sufficient  if  a  party  charged  with 
contempt  has  reasonable  notice  of  an  application  to  punish  him, 
and  was  served  with  copies  of  the  affidavits  on  which  it  was 
based.  Papers  once  served  and  referred  to  in  the  order  to  show 
cause  need  not  be  again  served.  Clark  v.  Binninger,  43  N.  Y. 
Supr.  126,  affirmed,  75  N.  Y.  344. 

Where  a  party  has  appeared  in  an  action  by  attorney,  it  is  not 
necessary  to  serve  him  personally  with  an  order  to  show  cause 
why  he  should  not  be  punished  for  contempt,  such  an  order  being 
commonly  served  on  the  attorney.  Matson  v.  Matson,  5  Civ. 
Pro.  58.  Where  an  order,  that  an  administratrix  show  cause, 
was  addressed  to  her  individually,  and  not  as  administratrix,  but 
the  copy  of  the  decree  had  been  served  and  was  referred  to  in 
the  order,  it  was  held  the  error  might  be  amended.  Gillies  v. 
Krender,  i  Dem.  349.  In  a  proceeding  to  punish  for  contempt, 
against  agents  of  a  city,  it  was  objected  that  it  did  not  appear 
that  the  summons  and  complaint  in  the  original  action  had  been 
served  on  the  city,  and  the  court  allowed  proof  of  such  service 
to  be  made  nunc  pro  t^inc.  The  attachment  was  issued  upon  an 
affidavit  also  that  the  action  was  commenced  by  the  service  of  a 
summons  and  complaint  on  the  city.  Held,  that  the  original 
papers  sufficiently  showed  that  the  city  was  a  party  to  the 
action,  and  the  order  as  to  filing  proof  merely  supplied  additional 
proof  of  the  fact.     People  v.  Dwyer,  90  N.  Y.  402.     In  proceed- 


6iS 


CIVIL   CONTEMPT. 


Art.  4.     Manner  of  Commencing  the  Proceeding. 


ings  to  enforce  the  rights  of  a  party  who  has  recovered  a  judg- 
ment in  a  civil  action,  as  for  a  contempt  for  refusing  to  comply 
"with  the  judgment,  personal  service  of  the  order  to  show  cause 
is  not  indispensable,  although  it  is  in  criminal  contempts.  The 
order  may  be  served  on  the  attorney.  PiU  v.  Davison,  37  N.  Y. 
235.  Where  attorneys  appeared  for  the  person  adjudged  guilty 
of  contempt,  after  service  on  him  of  an  attachment,  he  was  held 
bound  by  their  appearance  and  action.  Watrous  v.  Kearney,  79 
N.  Y.  496. 

Where  an  indorsement  is  made  on  the  undertaking,  as  pro- 
vided by  §  2275,  the  moving  party  obtains  security  for  the  ap- 
pearance of  the  party  complained  of,  in  case  the  undertaking  is 
furnished;  otherwise  he  is  committed,  as  if  no  such  indorsement 
were  made,  as  is  provided  in  the  next  section.  The  form  for 
indorsement  is  given  under  §  2269,  supra. 

Precedent  for  Undertaking. 

ULSTER  SURROGATE'S  COURT. 


In  the  Matter  of  the  Estate  of  John  J.  Ferris, 
deceased. 


•  Title  where  proceeding  is  by  order 
to  show  cause. 


Whereas,  On  the  first  day  of  April,  1887,  a  warrant  of  attachment 
issued  out  of  the  surrogate's  court,  commanding-  the  sheriff  of  Ulster 
County  to  arrest  Oliver  B.  Whitney,  and  bring  him  before  the  sur- 
rogate's court,  to  be  held  at  the  surrogate's  office  in  the  city  of 
Kingston,  on  the  loth  day  of  April,  1887,  at  ten  o'clock  in  thefore- 
noon  ;   and 

Whereas,  Said  warrant  of  attachment  has  been  executed  by  said 
sheriff  ; 

Now,  therefore,  we,  Nathaniel  H.  DuBois  and  William  H.  Wool- 
sey,  both  of  the  town  of  Marbletown,  farmers  by  occupation,  hereby 
undertake,  jointly  and  severally,  in  the  sum  of  $2,400,  pursuant  to 
the  statute  and  order  of  the  court,  that  the  said  Oliver  B.  Whitney  will 
appear  in  the  said  surrogate's  court,  in  the  city  of  Kingston,  in  the 
county  of  Ulster,  on  the  said  loth  day  of  April,  1887,  at  ten  o  clock 
in  the  forenoon,  and  then  there  abide  the  direction  and  order  of 
said  surrogate's  court.  NATHANIEL  H.  DuBOIS, 

WILLIAM  H.  WOOLSEY, 

{Add justification  and  acknowledgment.) 

The  form  of  return  may  be,  when  indorsed  on  the  warrant,  as 
follows : 

Ulster  County,  ss.  : 

I,  George  Young,  sheriff  of  Ulster  County,  certify  that  pursuant  to 


CIVIL   CONTEMPT.  619 


Art.  5.     Interrogatories  and  Proofs. 


the  command  of  the  within  warrant,  I  have  arrested  the  within- 
named  Oliver  B.  Whitney,  and  taken  an  undertaking  in  the  sum  of 
$2,400,  as  directed  by  said  warrant,  executed  by  Nathaniel  H.  DuBois 
and  William  H.  Woolsey,  conditioned  that  the  said  Oliver  B.  Whit- 
ney will  appear  at  the  time  and  place  required  in  said  warrant. 
Dated  February  2,  1887.  GEORGE  YOUNG, 

By  GEORGE  DRUMOND, 

Under  Sheriff. 

The  fact  that  the  attachment  was  directed  to  the  sheriff  of 
a  county  named  therein,  and  generally  to  the  sheriff  of  any 
county,  does  not  invalidate  the  writ  or  procceedings  had  there- 
under, as  the  particular  direction  may  be  rejected  as  mere  sur- 
plusage.    People  ex  rel.  Duffus  v.  Brown,  46  Hun,  320. 

ARTICLE  V. 
Interrogatories  and  Proofs.    §  2280. 

§  2280.  Interrogatories  and  proofs. 

When  the  accused  is  produced,  by  virtue  of  a  warrant,  or  a  writ  of  habeas  corpus,  or 
appears  upon  the  return  of  a  warrant,  the  court,  judge,  or  referee,  must,  unless  he 
admits  the  offence  charged,  cause  interrogatories  to  be  filed,  specifying  the  facts  and 
circumstances  of  the  offence  charged  against  him.  The  accused  must  make  written 
answers  thereto,  under  oath,  within  such  reasonable  time  as  the  court,  judge,  or  referee 
allows  therefor ;  and  either  party  may  produce  affidavits,  or  other  proofs,  contradict- 
ing or  corroborating  any  answer.  Upon  the  original  affidavits,  the  answer,  and  subse- 
quent proofs,  the  court  judge,  or  referee,  must  determine,  whether  the  accused  has 
committed  the  offence  charged. 

Precedent  for  Answer  to  Petition. 

ULSTER  SURROGATE'S  COURT. 


The  People  ex  rel.  Theophelia  G.  Townsend, 

a^st. 

Oliver  B.  Whitney. 


75  N.  Y.  425. 


Or, 


In  the  Matter  of  the  Application  to  Punish  Oliver 
B.  Whitney  for  a  Contempt. 


The  answer  of  Oliver  B.  Whitney  to  the  petition  of  Theophelia  G. 
Townsend,  filed  in  this  court  on  the  ist  day  of  April,  1887,  shows  to 
the  court : 


620  CIVIL   CONTEMPT. 


Art.  5.     Interrogatories  and  Proofs. 


First.  That  the  decree  for  non-comphance  with  which  this  attach- 
ment has  issued  was  and  is  wholly  merged  in  a  judgment  obtained 
against  him,  the  said  Oliver  B.  Whitney,  for  and  by  said  Theophelia 
G.  Townsend,  on  account  of  the  sum  directed  to  be  paid  her  in  and 
by  the  decree  in  the  estate  of  said  John  J.  Ferris,  wherefore  the  peti- 
tioner should  not  be  allowed  to  maintain  this  action. 

Second.  The  said  Oliver  B.  Whitney  alleges  that  the  said  claim  is 
actually  owned  by  William  G.  Townsend,  the  husband  of  the  peti- 
tioner, and  that  the  petitioner  is  not  the  real  party  in  interest,  but 
that  said  William  G.  Townsend  is  the  real  party  in  interest. 

Wherefore,  the  said  Oliver  B.  Whitney  asks  that  said  writ  of  attach- 
ment be  vacated  and  set  aside  with  costs. 

OLIVER  B.  WHITNEY. 

(  Verification  as  to  pleading. ) 

Interrogatories  are  only  necessary  in  cases  where  the  act  or 
omission  constituting  the  contempt  is  either  denied  or  not  admit- 
ted, and  when  such  act  or  omission  is  expressly  admitted  by 
defendant  it  is  not  necessary  that  interrogatories  should  be  filed. 
People  V.  Cartwright,  1 1  Hun,  362.  Interrogatories  are  unnecessary 
when  the  contempt  consists  of  the  admitted  refusal  to  answer 
questions,  and  the  party  has  been  served  with  the  affidavits  and 
order  to  show  cause,  and  is  before  the  judge,  and  has  full  oppor- 
tunity to  answer.  Taylor  v.  Baldwin,  14  Abb.  166;  Watso7i  v. 
Fitzsimmons,  5  Duer,  629;  People  v.  Campbell,  40  N.  Y.  133  ;  Pitt 
V.  Davison,  37  id.  235  ;  Lathrop  v.  Clapp,  40  id.  328.  Where  the 
proceedings  are  instituted  by  an  order  to  show  cause,  interroga- 
tories are  not  necessary,  even  though  the  order  does  not  show 
in  what  respect  the  injunction  is  claimed  to  have  been  violated, 
nor  the  punishment  desired.  Mayor  v.  N.  Y.  &  S.  I.  Ferry  Co., 
40  N.  Y.  Super.  300,  affirmed,  64  N.  Y.  622.  And  an  order  of 
reference  may,  in  such  a  case,  even  in  criminal  contempts,  send 
the  matter  to  a  referee  without  filing  interrogatories.  People  v. 
Alexander,  3  Hun,  211,  Where  there  was  a  motion  for  an  attach- 
ment or  other  relief,  and  the  matter  was  sent  to  a  referee,  and  it 
was  heard  on  his  report,  interrogatories  were  held  to  be  waived. 
Matter  of  Nichols,  54  N.  Y.  62.  Interrogatories  should  be  confined 
to  the  fact  of  the  service  of  the  order  or  process,  and  to  the  acts  or 
neglects  constituting  the  violation.  Brozvn  v.  Andrews,  I  Barb. 
227.     (See  form  under  next  section.) 

The  fact  that  an  order  to  show  cause  is  irregular,  where  it  does 
not  mislead,  is  not  ground  for  setting  aside  the  order  punishing 
for  disobedience.     People  v.  Kenny,  2   Hun,    346.     If  the  order 


CIVIL   CONTEMPT.  62 1 


Art.  5.     Interrogatories  and  Proofs. 


appears  to  be  valid,  the  person  served  is  bound  to  obey  the 
order  or  move  to  set  it  aside  ;  the  only  issues  on  the  application 
to  commit  are  as  to  the  regularity  of  the  proceedings  and  the 
excuse  for  disobedience.  Hilton  v.  Pater  son,  18  Abb.  245. 
After  submitting  to  answer  interrogatories,  it  is  too  late  to 
raise  the  point  that  the  judgment,  which  is  the  foundation  of 
the  proceedings,  has  not  been  served.  People  v.  Kearney,  21 
How.  74.  Where,  on  an  order  to  show  cause,  the  judgment 
debtor  fails  to  appear,  and  the  county  judge  declares  him 
in  contempt,  without  further  proof,  it  is  irregular;  the  moving 
party  must  make  out  a  case.  Pinkeye.  Langdon,  60  How.  180. 
If  a  party  refuses  to  answer  interrogatories,  the  order  for 
commitment  should  specify  such  refusal  as  the  misconduct ; 
it  is  irregular  to  commit  him  for  disobedience  of  the  original 
order.  DeWitt  v.  Denise,  30  How.  131.  There  must  be  clear 
proof  of  the  disobedience  to  authorize  punishment.  Potter  v. 
Low,  16  How.  549.  And  the  accused  party  may  read,  in  addi- 
tion to  his  answers  to  interrogatories,  afifidavits  negativing  wilful 
disobedience  of  the  order  for  the  violation  of  which  it  is  sought  to 
punish  him.  People  v.  Murphy,  i  Daly,  462  The  moving  party 
may  read  affidavits  in  reply.  Smith  v.  Smith,  23  How.  134, 
affirmed,  14  Abb.  468.  Where  it  is  proper  to  impose  any  condi- 
tion on  vacating  an  attachment  for  contempt,  this  must  be  done 
in  the  first  instance,  and  if  an  order  vacating  an  attachment  has 
once  been  entered,  such  order  cannot  be  rescinded  for  the  pur- 
pose of  imposing  a  condition,  nor  can  it  be  resettled  or  modified. 
Matter  of  Bradner,  87  N.  Y.  171.  It  is  no  answer  for  an  executor 
that  the  decree  was  made  on  joint  petition  of  parties  not  entitled 
to  join.  Estate  of  Kellinger,  2  Civ.  Pro.  68.  The  inability  of  the 
person  disobeying  may  be  considered.  GoodenongJi  v.  Davids, 
4  Law  Bull.  35.  In  proceedings  against  the  members  of  a  com- 
mon council  for  contempt,  it  is  no  defence  that  the  assent  of 
the  mayor  was  wanting,  or  that  their  disobedience  was  harmless, 
or  that  the  act  enjoined  was  a  nullity.  People  v.  Dwyer,  90 
N.  Y.  402. 


622  CIVIL   CONTEMPT. 


Art.  5.     Interrogatories  and  Proofs. 


Order  for  Interrogatories. 

At  a  Term  of  the  Ulster  surrogate's   court,  held  at  the  surrogate's 
office,  in  the  city  of  Kingston,  Ulster  County,  April  10,  1887  : 


The  People  ex  rel.  Theophelia  G.  Townsend, 
agst. 
Oliver  B.  Whitney. 


75  N.  Y.  425. 


A  warrant  of  attachment  having  heretorore  issued  out  of  this 
court  against  the  body  of  Oliver  B.  Whitney,  returnable  this  day, 
and  he  having  been  arrested  by  virtue  thereof,  and  this  day  ap- 
peared in  person  and  by  J.  J.  Linson,  Esq..  his  attorney,  and 
answered  denying  the  alleged  contempt  :  Now,  on  motion  of  Preston 
&  Chipp,  attorneys  for  petitioner,  it  is  ordered  that  the  following 
interrogatories  be  administered  to  said  Oliver  B.  Whitney,  specify- 
ing the  facts  and  circumstances  as  alleged  against  him.  It  is  further 
ordered  that  a  copy  of  such  interrogatories  be  forthwith  served  on 
the  said  Oliver  B.  Whitney,  and  that  he  answer  the  same  in  writing, 
upon  oath,  and  file  the  same  with  the  clerk  of  this  court  within 
twenty-four  hours. 

It  is  further  ordered,  that  the  sheriff  detain  the  said  Oliver  B. 
Whitney  in  his  custody  until  the  further  order  of  the  court. 

O.  P.  CARPENTER, 

Surrogate. 

Interrogatories. 

(Title  as  above.) 

Interrogatories  to  be  administered  to  Oliver  B.  Whitney  touching 
a  contempt  alleged  against  him  for  non-payment  of  moneys  held  by 
him  as  executor  of  John  J.  Ferris,  deceased,  and  which  he  has 
neglected  and  refused  to  pay  over,  pursuant  to  a  decree  of  this  court. 

First  Interrogatory. — Were  you  heretofore  served  with  a  copy  of 
the  decree  of  the  surrogate's  court  of  Ulster  County,  commanding 
and  directing  you  to  pay  over  to  Theophelia  G.  Townsend  the  sum 
of  $800  due  her  as  a  legatee  of  John  J.  Ferris,  deceased  ;  if  so,  when 
and  where  } 

Second  Interrogatory. — Did  you  then  and  there  refuse  to  pay  over 
said  moneys,  and  have  you  not  ever  since  neglected  and  refused  so 
to  do  > 

Third  Interrogatory.— V>\^  you  not.  at  the  time  of  service  of  such 
decree,  state  you  had  spent  the  money  of  the  estate,  and  that  no 
court  could  compel  you  to  pay  it  over  } 

All  of  which  interrogatories  the  said  Oliver  B.  Whitney  is  required 
to  answer  as  aforesaid,  pursuant  to  order  of  surrogate's  court. 

Granted  April  12,  1887.  PRESTON  &  CHIPP, 

Attorneys  for  Petitioner. 

Answers  to  Interrogatories. 

(Title  as  above.) 

The  answer  of  Oliver  B.  Whitney  to  tlie  interrogatories  this   day 


CIVIL   CONTEMPT.  625 


Art.  6.     The  Punishment. 


propounded   to    him    in   this    matter    pursuant   to  an  order  of  this 
court  : 

First  Interrogatory. — To  this  he  answers  that  a  copy  of  the  decree 
therein  set  forth  was  served  upon  him,  but  that  at  what  date  he  is 
unable  to  say. 

Second  Interrogatory. — To  this  he  answers  that  he  stated  he  was 
unable  to  pay  the  amount  asked. 

TJiird  Interrogatory. — To  this  he  answers  to  the  effect  therein   set 
forth,  but  that  no  disrespect  to  the  court  was  thereby  intended,  but 
that  he  only  intended  to  say  it  was  impossible  for  him  to  raise   the 
money  required. 
Subscribed  and  sworn  to  be-  \  OLIVER  B.  WHITNEY. 

fore  me,  April  10,  1887.        j 

O.  P.  CARPENTER, 

Surrogate. 

ARTICLE  VI. 

The  Punishment.    §§  2281-2286. 

§  2281.  When  and  how  accused  to  be  punished. 

If  it  is  determined  that  the  accused  has  committed  the  offence  charged  ;  and  that  it 
was  calculated  to,  or  actually  did,  defeat,  impair,  impede,  or  prejudice  the  rights  or 
remedies  of  a  party  to  an  action  or  special  proceeding,  brought  in  the  court,  or  before 
the  judge  or  referee  ;  the  court,  judge,  or  referee  must  make  a  final  order  accordingly, 
and  directing  that  he  be  punished  by  fine  or  imprisonment,  or  both,  as  the  nature  of 
the  case  requires.     A  warrant  of  commitment  must  issue  accordingly. 

§  2282.  Id. ;  upon  return  of  habeas  corpus. 

Where  the  accused  is  brought  up  by  virtue  of  a  writ  of  habeas  corpus,  he  must,  after 
the  final  order  is  made,  be  remanded  to  the  custody  of  the  sheriff,  or  other  officer,  to 
whom  the  writ  was  directed.  If  the  final  order  directs  that  he  be  punished  by  im- 
prisonment, or  committed  until  the  payment  of  a  sum  of  money,  he  must  be  so 
imprisoned  or  committed,  upon  his  discharge  from  custody,  under  the  mandate,, 
by  virtue  of  which  he  is  held  by  the  sheriff,  or  other  officer. 

2  R.  S.  560,  §  5  (2  Edm.  580). 

§  2283.  Id. ;  upon  return  of  order  to  show  cause. 

Upon  the  return  of  an  order  to  show  cause,  the  questions  which  arise  must  be  deter- 
mined, as  upon  any  other  motion  ;  and  if  the  determination  is  to  the  effect  specified 
in  the  last  section  but  one  the  order  thereupon  must  be  to  the  same  effect  as  the  final 
order  therein  prescribed.  Upon  a  certified  copy  of  the  order  so  made,  the  offender 
may  be  committed,  without  further  process. 

§  2284.  Amount  of  fine. 

If  an  actual  loss  or  injury  has  been  produced  to  a  party  to  an  action  or  special  pro- 
ceeding, by  reason  of  the  misconduct  proved  against  the  offender,  and  the  case  is  not 
one  where  it  is  specially  prescribed  by  law,  that  an  action  may  be  maintained  to  recover 
damages  for  the  loss  or  injury,  a  fine,  sufficient  to  indemnify  the  aggrieved  party,  must 
be  imposed  upon  the  offender,  and  collected,  and  paid  over  to  the  aggrieved  party, 
under  direction  of  the  court.  The  payment  and  acceptance  of  such  a  fine  constitute 
a  bar  to  an  action  by  the  aggrieved  party,  to  recover  damages  for  the  loss  or  injury. 
Where  it  is  not  shown  that  such  an  actual  loss  or  injury  has  been  produced,  a  fine 


624  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


must  be  imposed,  not  exceeding  the  amount  of  the  complainant's  costs  and  expenses, 
and  two  hundred  and  fifty  dollars  in  addition  thereto,  and  must  be  collected  and  paid, 
in  like  manner.     A  corporation  may  be  fined  as  prescribed  in  this  section. 
2  R.  S.  §§  21  and  22,  relating  to  contempts,  am'd.     See  §§  853  and  855. 

§  2285.  Length  of  imprisonment. 

Where  the  misconduct  proved  consists  of  an  omission  to  perform  an  act  or  duty, 
which  it  is  yet  in  the  power  of  the  offender  to  perform,  he  shall  be  imprisoned  only 
until  he  has  performed  it,  and  paid  the  fine  imposed.  In  such  a  case,  the  order,  and 
the  warrant  of  commitment,  if  one  is  issued,  must  specify  the  act  or  duty  to  be  per- 
formed, and  the  sum  to  be  paid.  In  every  other  case,  where  special  provision  is  not 
otherwise  made  by  law,  the  offender  may  be  imprisoned  for  a  reasonable  time,  not  ex- 
ceeding six  months,  and  until  the  fine,  if  any,  is  paid ;  and  the  order,  and  the  warrant 
of  commitment,  if  any,  must  specify  the  amount  of  the  fine,  and  the  duration  of  the 
imprisonment. 

Id.  §§  23,  24,  and  25,  consolidated  and  am'd. 

§  2286,  When  court  may  release  oflender. 

Where  an  offender,  imprisoned  as  prescribed  in  this  title,  is  unable  to  endure  the 
imprisonment,  or  to  pay  the  sum,  or  perform  the  act  or  duty,  required  to  be  paid  or 
performed,  in  order  to  entitle  him  to  be  released,  the  court,  judge,  or  referee,  or,  where 
the  commitment  was  made  as  prescribed  in  §  2457  of  this  act,  the  court,  out  of  which 
the  execution  was  issued,  may,  in  its  or  his  discretion,  and  upon  such  terms  as  justice 
requires,  make  an  order,  directing  him  to  be  discharged  from  the  imprisonment. 

Id.  part  of  §  20 ;  L.  1843,  ch.  9,  am'd  ;  Co.  Proc.  §  302. 

In  a  commitment  made  by  a  court  of  general  jurisdiction,  all  the 
preliminaries  to  warrant  the  imprisonment  need  not  be  set  out, 
and  it  need  not  recite  that  evidence  sufficient  to  justify  the  com- 
mitment has  been  given  although  this  is  usual.     People  v.  Nevins, 

I  Hill,  154  ;  Davison  s  Case,  13  Abb.  129;  People  v.  Oyer  and  Tcr- 
fniner,  27  How,  14.  But  it  must  designate  the  particular  miscon- 
duct of  which  the  defendant  is  convicted.  De  Witt  v.  DcuJiis,  30 
How.  131.  And  where  a  commitment  of  a  witness  for  refusing  to 
answer  a  question  did  not  show  the  question  was  pertinent  and 
legal,  the  prisoner  was  discharged  on  habeas  corpus.  Matter  of 
Quinn,  2  Law  Bull.  38.  If  the  commitment  is  for  non-payment 
of  money,  it  must  show  refusal  to  pay,  but  if  the  ground  is  sub- 
stantially stated  and  one  in  which  the  court  had  jurisdiction,  the 
process  will  protect  all  engaged  in  the  arrest.     Seaman  v.  Duryea, 

II  N.  Y.  324.  A  commitment  for  refusing  to  deliver  property 
must  show  on  its  face  that  the  person  committed  had  the  custody 
of  the  property,  and  the  court,  on  habeas  corpus,  may  go  back  of 
the  papers  used  on  the  motion  to  sustain  or  discharge  a  defective 
commitment.  People  m.  Connor,  15  Abb.  (N.  S.)  430.  Where  a 
prisoner  was  committed  for  contempt  on  several  charges,  one  be- 
ing for  contemptuous  behavior,  no  specific  act  being  stated,  it 


CIVIL   CONTEMPT.  625 


Art.  6.     The  Punishment. 


was  held  bad.  Matter  of  Clark,  2  Law  Bull.  22.  But,  on  the 
other  hand,  in  People  v.  Kelly,  12  Abb.  150,  affirmed,  24  N.  Y.  74, 
it  was  held  that  a  commitm'=nt  for  refusing  to  testify,  on  the 
ground  of  alleged  prejudice,  need  not  show  affirmatively  the  facts 
recited  on  establishing  that  he  was  not  entitled  to  the  privilege, 
even  though  it  state  that  he  claimed  the  privilege,  nor  how  the 
question  was  relevant,  nor  how  the  answer  might  affect  the  pris- 
oner ;  and  it  is  held,  in  RuggM.  Spencer,  59  Barb,  383,  that  a  re- 
cital of  these  matters,  though  a  very  proper  and  formal  part  of 
an  adjudication  or  order,  is  not  a  vital  and  conclusive  part.  Nor 
is  it  at  all  conclusive  as  to  the  facts  which  were  made  to  appear 
before  the  officer,  or  that  no  other  facts  appeared.  It  is  said,  in 
Allen  V.Allen,  8  Abb.  N.  C.  175,  that  a  commitment  to  jail  for 
contempt  for  refusing  to  pay  costs  in  divorce  proceedings  was 
held  not  to  be  invalidated  by  the  fact  that  the  commitment  re- 
cited costs,  for  the  non-payment  of  which  there  could  be  no  im- 
prisonment, the  prisoner  not  having  paid  or  offered  to  pay  the 
residue.  But  in  People  v.  Bergen,^  Hun,  267,  a  commitment  was 
set  aside,  among  other  reasons,  upon  the  ground  that  it  was  too 
broad.  In  Yates  v.  Lansing,  9  Johns.  395,  it  was  held  that  full 
recitals  were  not  necessary,  and,  also,  '\w  Reynolds  v.  McElhone,  20 
How.  454,  informal  recitals  were  held  sufficient.  As  to  sufficient 
and  insufficient  recitals,  see  Ford  v.  Ford,  41  How.  169;  Ward  v. 
Ward,  6  Abb.  (N.  S.)  79.  It  does  not  deprive  a  court  of  juris- 
diction, or  prevent  a  final  decision  on  the  merits,  for  a  court  to 
suspend  final  action  for  a  period,  to  enable  the  party  in  contempt 
to  comply  with  the  original  order,  or  to  perform  some  act  as  a 
substitute  for  such  compliance.  People  v.  Bergen,  53  N.  Y.  404. 
The  costs  should  be  taxed  and  inserted  in  the  order  as  part  of 
the  fine  imposed.  Albany  City  Bank  v.  ScJicrmerJiorn,  9  Paige, 
372.  For  direction  as  to  form  of  order,  see  People  v.  Rogers,  2 
id.  103. 

Where  a  defendant,  is  ordered  committed  for  contempt,  it  must 
be  to  the  jail  without  the  limits.  People  v.  Fancher,  2  Hun,  226. 
SeeA7ner7nan  v.  Stokes,  Fourth  Dept.,  Oct.,  1886,  3  State  Rep.  356, 
holding  that  the  enforcement  of  orders  and  decrees  directing 
trustees  to  pay  over  money  is  by  an  execution  against  the  per- 
son, or  a  precept  of  commitment  which  would  entitle  a  party  to 
the  benefit  of  the  jail  liberties.  Punishment  for  a  contempt  can- 
not be  inflicted  in  cases  where  an  execution  can  issue,  viz.,  on  a 
40 


626  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


final  decree  for  a  sum  of  money.  An  order  committing  the  de- 
fendant for  non-payment  of  referee's  fees  ordered  to  be  paid  is 
defective  and  should  be  reversed,  if  it  fails  to  adjudicate,  as  re- 
quired by  Code  of  Civil  Procedure,  §§  2281,  2283,  upon  the  return 
of  the  order  to  show  cause,  that  defendant  has  committed  the 
offence  charged,  and  that  the  offence  was  calculated  to,  or  did, 
actually  defeat,  impair,  or  prejudice  the  rights  and  remedies  of 
the  plaintiff.  MaJion  v,  MaJwn,  50  N.  Y.  Super.  92.  An  order 
adjudging  a  person  in  contempt,  and  directing  his  commitment 
for  a  failure  to  pay  alimony  awarded  in  a  divorce  suit,  need  con- 
tain no  adjudication  that  judgment  could  not  be  enforced  by 
means  of  security,  or  the  sequestration  of  his  property.  Ryer 
V.  Ryer,  67  How.  369.  In  a  surrogate's  court,  a  warrant  com- 
mitting a  witness  for  refusing  to  answer  need  not  contain  the 
particular  interrogatories  refused  to  be  answered.  Matter  of 
Jones,  6  Civ.  Pro.  250. 

The  fact  that  the  defendant  is  given  an  opportunit)^  to  comply 
with  the  terms  of  the  order  before  the  commitment  should  issue 
does  not  affect  the  validity  of  the  order.  Matter  of  BhuncntJialy 
22  Misc.  704,  50  Supp.  49,  84  St.  Rep.  49.  A  person  who  justi- 
fies as  a  surety  on  a  bond  to  secure  the  release  of  premises  from 
a  mechanic's  lien,  and  who  claims  he  is  the  owner  of  property  for 
which  in  fact  he  paid  nothing,  but  gave  a  mortgage  for  the  whole 
amount,  and  also  for  the  costs  of  a  building  which  he  erected 
thereon,  and  which  property  he  conveyed  a  month  after  his 
justification  without  consideration  to  the  party  upon  whose  prop- 
erty  the  lien  existed,  is  guilty  of  misconduct,  under  subdivision 
2  of  §  14  of  the  Code  of  Civil  Procedure,  and  such  misconduct 
actually  deceives  and  prejudices  the  rights  and  remedies  of  the 
petitioner,  within  the  meaning  of  §  2281  of  the  Code  of  Civil 
Procedure,  and  the  court  should  punish  him  by  fine  or  imprison- 
ment. Matter  of  Hay  Foundry  &  Iron  Works,  22  App.  Div. 
91.  As  §  2284  provides  that  in  case  of  actual  damage  sustained 
by  reason  of  misconduct  proved  against  the  offender,  a  fine 
sufficient  to  indemnify  the  aggrieved  party  must  be  imposed 
upon  the  offender.  It  was  held,  that  where  one  fraudulently 
justified  as  surety  on  a  bond  to  release  property  from  a  mechanic's 
lien,  that  the  amount  of  his  fine  should  be  the  amount  due  upon 
the  mechanic's  lien  with  the  costs  of  the  contempt  proceedings. 
Matter  of  Hay  Foundry  &  Iron  Works,  22  App.  Div.  91. 


CIVIL   CONTEMPT.  627 


Art.  6.     The  Punishment. 


Order  Adjudging  Defendants   in  Contempt. 

{Captain, ) 
SUPREME  COURT. 


Archibald  Sheffield  et  al., 

agst. 
John  T.  Mitchell  et  al. 


21  App.  Div.  518. 


An  order  to  show  cause  why  the  defendants,  John  T.  Mitchell  and 
Henry  H.  Cooper,  should  not  be  punished  for  contempt  for  their  mis- 
conduct in  failing-  to  obey  the  injunction  order  of  this  court  of  March 
16,  1897,  forbidding  them  and  each  of  them  from  collecting,  re- 
ceiving, or  in  any  way  interfering  with  any  moneys  due  or  to  be- 
come due  from  the  United  States  Government  on  account  of  the 
purchase  from  the  defendants  Mitchell  and  Cooper  of  certain  teas, 
which  are  the  subject-matter  of  this  action,  and  also  for  their  mis- 
conduct in  failing  to  obey  the  injunction  order  of  April  13,  1897, 
herein  heretofore  and  on  the  29th  day  of  May,  1897,  having  been 
granted  by  this  court,  and  said  matter  having  come  on  to  be  heard 
on  the  14th  day  of  June,    1897. 

Now,  on  reading  and  filing  the    affidavits  of  and , 

and  upon  the  order  to  show  cause  herein,  dated  March  16,  1897,  the 
summons  and  complaint  herein  and  the  affidavits  upon  which  the 
order  to  show  cause  of  March  16,  1897,  was  granted,  and  the  affi- 
davits of  service  thereon  upon  the  defendants,  and  upon  the  order 
continuing  the  injunction  herein,  dated  April  13, 1897.  filed  herein  on 
the  13th  day  of  April,  1897,  and  upon  reading  and  filing  the  affi- 
davits of  service  of  the  order  to  show  cause  herein  verified  June  6, 
1897,  and  in  support  of  this  motion,  and  after  reading  and  filing  the 

affidavits  of in  opposition  thereto,  and  after  hearing , 

counsel  for  the  plaintiffs,  in  support  of  said  motion,  and  after  hearing 

,  counsel  for  defendants  Mitchell  and  Cooper,  in    opposition 

thereto,  and  due  deliberation  having  been  had  thereon. 

Now,  on  motion  of  Putney  &  Bishop,  attorney  for  the  plaintiffs,  it 
is  hereby 

Ordered,  adjudged,   and  decreed, 

1.  That  the  defendant  Henry  H.  Cooper  is  guilty  of  the  contempt 
of  court  in  having  wilfully  disobeyed  the  injunction  order  made  in 
this  action  on  the  i6th  day  of  March,  1897,  in  that  he  received  from 
the  United  States  Government  the  sum  of  $1,556.03,  the  proceeds  of 
a  portion  of  the  teas  mentioned  in  the  complaint  after  the  service 
upon  him  of  the  said  order  in  violation  of  said  order. 

2.  That  said  misconduct  of  said  H.  H.  Cooper  was  calculated  to 
and  did  actually  defeat,  impair,  impede,  and  prejudice  the  rights  and 
remedies  of  the  plaintiffs  herein  to  their  actual  loss  and  injury  in  the 
sum  of  $1,556.03    besides  the  costs  of  this  motion. 

3.  That  the  said  H.  H.  Cooper  for  said  misconduct  is  hereby 
fined  the  sum  of  1,556.03,  to  be  paid  to  the  plaintiffs,  being  the  said 
sum  together  with  $10  costs  of  this  motion. 


628  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


4.  That  said  H.  H.  Cooper  be  committed  by  the  sheriff  of  the 
city  and  county  of  New  York  to  the  county  jail  in  said  county,  to  be 
there  detained  in  close  custody  until  he  shall  have  paid  said  sum  or 
he  be  discharged  according  to  law,  and  that  a  warrant  issue  to  exe- 
cute this  order  unless  within  five  days  after  the  service  on  the  de- 
fendants' attorney  of  a  copy  of  the  order  herein  said  H.  H.  Cooper 
pay  the  sum  of  11,556.03  to  James  H.  Kearney,  the  receiver  duly 
appointed  herein. 

Enter.  HENRY  R.   BEEKMAN, 

Justice  Supreme  Court. 

Order  Adjudging  Defendant  in  Contempt. 

At  a  surrogates  court,  held  in  and  for  the  county  of  Rockland,  at 
the  surrogate's  office,  in  the  village  of  Nyack,  on  the  3d  day  of 
February,   1897  : 

Present  : — Hon.  A.  S.  Tompkins,  Surrogate. 


In  the  Matter  of  the  Application  of 
Isaac  E.  Pye,  etc. 


154  N.  Y.  773. 


An  amended  final  order  and  decree  having  been  duly  made  and 
entered  in  this  proceeding  on  the  i8th  day  of  January,  1897,  re- 
moving Erastus  Van  Houten  from  his  position  as  executor  of  the 
last  will  and  testament  of  Edward  G.  Van  Houten,  deceased,  direct- 
ing that  all  authority  and  rights  of  the  said  Erastus  Van  Houten  as 
such  executor  cease  ;  and  enjoining  him  from  in  any  way  exercising 
control  over  or  interfering  with  any  property  which  belongs  to  the 
estate  of  said  deceased,  or  which  came  into  his  possession  as  exec- 
utor, and  directing  him  upon  the  service  upon  him  of  a  certified 
copy  of  said  order  and  decree  to  pay  and  deliver  over  to  Anna  L. 
Van  Houten  and  Delia  Van  Houten,  cxecutrices  of  Edward  G.  Van 
Houten,  deceased,  or  their  representatives,  all  money  and  property, 
or  the  proceeds  thereof  belonging  to  the  estate  of  said  deceased,  or 
which  came  into  his  possession  as  executor,  and  all  pr<)])erty  belong- 
ing to  the  estate  of  said  deceased  now  in  his  possession  and  under 
his  control,  and  particularly  the  business  as  a  whole  and  all  the 
goods  and  chattels  which  belonged  to  the  testator  in  his  lifetime,  or 
which  represent  the  proceeds  of  any  such  goods  and  chattels  con- 
tained in  the  building  situated  at  the  corner  of  Church  and  Liberty 
Streets  in  the  village  of  Nyack,  wherein  the  livery  stable  business 
was  heretofore  carried  on  by  the  deceased  in  his  lifetime,  and  that 
he  vacate  said  building  and  cease  from  exercising  control  over  its 
contents  ;  and  a  copy  of  said  decree  having  been  personally  served 
upon  the  said  Erastus  Van  Houten.  said  Erastus  Van  Houten  then 
being  in  possession  of  assets  which  belong  to  said  estate  and  which 
came  into  his  possession  as  executor,  and  said  Erastus  Van  Houten 
having  refused  to  dflivcr  jiossession  of  the  said  assets  to  Anna  L. 
Van  Houten  and  Delia  Van  Houten,  executriccs  of  the  will  of  said 
Edward  Van  Houten,  deceased,  or  their  representatives  ;  and  hav- 


CIVIL   CONTEMPT.  629 


Art.  6.     The  Punishment. 


ing  continued  to  exercise  control  over  and  to  interfere  with  said 
estate  in  violation  of  said  order  of  January  18,  1897  ;  and  an  order 
to  show  cause  having  been  duly  issued  out  of  this  court  on  the  27th 
day  of  January,  1897,  requiring  the  said  Erastus  Van  Houten  to 
show  cause  why  he  should  not  be  punished  as  for  a  contempt  of 
court  in  refusing  to  obey  said  order  of  this  court  made  and  entered 
on  the  18th  day  of  January,  1897,  as  aforesaid,  and  the  said 
order  to  show  cause  having  been  duly  personally  served  upon  the 
said  Erastus  Van  Houten,  and  the  said  Erastus  Van  Houten  having 
duly  appeared  upon  the  return  of  said  order  to  show  cause  in  person 
and  by  attorney  ;  and  argument  having  been  had  thereon  ;  and  it 
appearing  after  due  deliberation  having  been  had  therein  that  the 
said  Erastus  Van  Houten  is  guilty  of  a  contempt  of  court  in  having 
refused  to  obey  the  order  of  this  court  made  and  entered  on  the  i8th 
day  of  January,   1897,  as  aforesaid. 

Now,  upon  the  order  of  this  court  made  and  entered  on  the  i8th 
day  of  January,  1897,  removing  said  Erastus  Van  Houten  as  exec- 
utor of  the  last  will  and  testament  of  Edward  G.  Van  Houten.  de- 
ceased, and  upon  the  affidavit  of  Julius  Henry  Cohen,  verified  the 
20th  day  of  January,  1897,  ^^'^^^  o^  (insert  names  of  any  other 
affiants),  and  after  hearing  John  M.  Perry,  Esq.,  of  counsel  for  the 
petitioners,  in  behalf  of  said  motion,  and  Garrett  Z.  Snider,  Esq.,  of 
counsel  for  said  Erastus  Van  Houten,  in  opposition  thereto,  upon 
motion  of  Mannice,  Abbott  &  Perry,  Esqs.,  attorneys  for  petitioners, 
it  is 

Ordered,  adjudged,  and  decreed 

1.  That  Erastus  Van  Houten  is  guilty  of  contempt  of  court  in 
having  wilfully  disobeyed  the  amended  final  order  and  decree  made 
in  this  proceeding  on  the  i8th  day  of  January,  1897,  in  that  he  con- 
tinues in  possession  of  the  assets  of  the  estate  of  Edward  Van 
Houten,  deceased,  and  refuses  to  deliver  them  up  to  the  executrices 
who  are  rightfully  entitled  thereto,  and  continues  to  exercise  control 
over  and  interfere  with  such  assets. 

2.  That  such  misconduct  of  Erastus  Van  Houten  was  calculated 
to  and  actually  did  defeat,  impair,  impede,  and  prejudice  the  rights 
and  remedies  of  the  petitioners  herein  to  their  actual  loss  and  injury 
in  the  sum  of  $3,134.94  besides  the  costs  of  this  motion. 

3.  That  said  Erastus  Van  Houten  for  such  misconduct  is  hereby 
fined  the  sum  of  13, 144.94,  to  be  paid  to  the  petitioners,  being  said 
sum,  together  with  $10  costs  of  this  motion. 

4.  That  said  Erastus  Van  Houten  be  committed  by  the  sheriff  of 
Rockland  County  to  the  county  jail  of  said  county,  to  be  there  de- 
tained in  close  custody  until  he  shall  pay  said  sum  or  shall  be  dis- 
charged according  to  law. 

5.  That  until  the  payment  of  said  sums  of  money  all  proceedings 
herein  on  behalf  of  said  Erastus  Van  Houten,  except  to  review  this 
order,  be  and  they  hereby  are  stayed. 

A.   S.   TOMPKINS, 

Surrogate. 


630  CIVIL    CONTEMPT. 


Art.  6.     The  Punishment. 


Order  Discharging  Attachment. 

At  a  surrogate's  court,  held  in  and  for  the  county  of  Ulster,  at  the 
surrogate's  office,  in  the  city  of  Kingston,  said  county,  April  10, 
1887  : 

Present  : — Hon.  O.  P.   Carpenter,  Surrogate. 


The   People  ex  rel.  Theopheha  G.  Townsend, 

agst. 

OUver  B.  Whitney. 


75  N.  Y.  425. 


An  application  having  been  heretofore  made  by  and  on  behalf  of 
Theophelia  G.  Townsend  as  assignee  under  a  certain  decree  made 
in  this  court,  March  5,  1887,  wherein  and  whereby  Oliver  B.  Whitney 
and  another,  administrators  of,  etc.,  of  John  J.  Ferris,  deceased, 
were  directed  to  pay  certain  sums  of  money  to  the  assignors  of  said 
Theophelia  G.  Townsend,  for  a  precept  to  arrest  said  administrators 
and  bring  them  before  this  court,  to  answer  to  their  alleged  miscon- 
duct in  refusing  to  pay  said  moneys,  and  such  order  having  been 
granted,  and  an  attachment  issued  thereon  and  been  delivered  to  the 
sheriff,  and  the  sheriff  having  brought  the  said  Oliver  B.  Whitney 
before  me  by  virtue  thereof,  and  the  said  Theophelia  G.  Townsend 
having  appeared  by  Preston  &Chipp,  her  attorneys,  and  said  Oliver 
B.  Whitney  by  J.  J.  Linson,  his  attorney,  and  evidence  having  been 
taken  and  a  hearing  had,  and  the  said  Theophelia  G.  Townsend 
having  moved  for  a  commitment  against  said  Whitney  :  Now,  due 
deliberation  having  been  had  thereon,  it  is  ordered  that  the  applica- 
tion for  a  commitment  and  execution  against  the  person  in  the  form 
prescribed  by  law  be  and  the  same  hereby  is  denied,  and  the  order 
granting  an  attachment  against  said  Whitney  vacated.  And  it  is 
further  ordered  that  the  said  application  is  denied  as  a  matter  of  law 
and  not  as  a  matter  of  discretion.  O.    P.   CARPENl'ER, 

Surrogate. 

Order  granting  warrant  may  follow  substantially  same  form. 

Precedent  for  commitment  adapted  from  i  Duer,  511  : 

Warrant  of  Commitment. 

The  People  of  the  State  of  New  York  to  the  Sheriff  of  the  County  of 
Ulstej',  greeting  : 
Whkreas,  On  the  12th  day  of  March,  1853,  by  an  order  made  by  the 
Superior  Court,  at  a  Special  Term  thereof,  held  at  the  city  hall  in  the 
city  of  New  York,  in  a  proceeding  brought  by  the  People,  on  the  rela- 
tion of  Thomas  E.  Davis  and  Courtlandt  Palmer,  against  Oscar  W. 
Sturtevant,  it  was  ordered  that  the  said  Oscar  Sturtevant  be  committed 
to  the  common  jail  of  said  county,  thereto  remain  charged  with  the  con- 


CIVIL   CONTEMPT.  631 

Art.  6.     The  Punishment. 

tempt  mentioned  in  said  order  for  the  period  of  fifteen  days,  as  therein 
set  forth,  and  thereafter  until  he  shall  have  fully  paid  the  fine  imposed 
upon  him,  amounting  to  the  sum  of  ^352.20,  and  further  directing  a 
warrant  to  issue  to  carry  such  order  into  effect :  Now,  therefore,  we 
command  you  that  you  take  the  body  of  the  said  Oscar  Sturtevant,  and 
safely  keep  him  in  your  custody  in  the  common  jail  of  the  city  of  New 
York,  for  the  period  of  fifteen  days,  and  thereafter  until  such  time  as 
he  shall  have  fully  paid  the  fine  imposed  by  said  order,  being  the  sum 
of  $352.20,  with  your  fees  thereon,  or  until  he  shall  be  discharged  by 
order  of  this  court.  And  you  are  to  make  return  of  this  writ  to  our 
said  court,  under  your  hand,  and  certify  the  manner  in  which  you  shall 
have  executed  the  same. 

Witness,    Hon.  John   Duer,  one  of  the  justices  of  the  Superior 
[l.  s.l      Court,    at  the  city  hall,  in   the  city  of  New  York,  this    12th 
day  of  March,  1853.  HENRY  WILKINSON, 

JOHN  HARPER,  Clerk. 

AttGrney  for  Relator. 
Indorsed  : — "  By  the  court." 

HENRY  WILKINSON, 

Clerk. 

A  decree  was  granted  against  defendant  in  divorce  by  which 
he  was  required  to  give  security  for  the  maintenance  of  plaintiff, 
a  copy  of  the  decree  was  served  on  defendant,  and  a  demand  for 
security  and  payment  of  costs  made,  which  was  refused  ;  a  bail- 
able attachment  was  issued,  and  on  its  return  amotion  was  made 
to  vacate  it.  The  court  denied  the  motion,  fined  the  defendant 
for  misconduct,  and  ordered  him  to  give  the  security.  Heldy 
that  the  court  had  jurisdiction  to  grant  such  relief  as  the  facts 
and  circumstances  warranted  ;  that  it  had  authority  to  punish  by 
fine  or  imprisonment,  or  either  ;  and  that  it  was  sufificient  to 
serve  a  copy  of  the  decree,  with  a  statement  of  the  alimony  un- 
paid, and  a  demand  for  the  same ;  the  fact  that  the  decree 
authorizes  an  execution  to  issue  in  case  of  failure  to  pay  the 
alimony  does  not  estop  plaintiff  from  enforcing  its  payment  by 
proceedings  for  contempt.  Park  v.  Park,  80  N.  Y.  156.  A 
reference  having  been  made  on  a  motion  in  an  action  for  an 
injunction,  and  the  order  providing  that  the  unsuccessful  party 
should  pay  the  referee's  fees,  the  referee  found  the  facts  for 
defendant  and  caused  a  notice  to  be  served  on  plaintiff  stating 
that  his  report  was  ready,  and  the  amount  of  his  fees.  Plaintiff 
not  having  paid  the  fees,  the  court,  on  proof,  granted  an  order 
requiring  plaintiff  to  pay  within  three  days,  or  show  cause  why 
he  should  not  be   committed  for  disobeying  the  order,  and  on 


632  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


return  of  the  order  and  proof  of  non-payment,  an  order  directing 
the  plaintiff  to  be  committed  for  contempt,  was  granted.  Hcld^ 
error,  as  there  were  no  facts  showing,  or  adjudication  holding, 
that  the  alleged  misconduct  defeated,  impaired,  impeded,  or 
prejudiced  any  right  or  remedy  of  the  defendant.  Fisher  v. 
Raab,  81  N.  Y.  235.  Where  the  defendant  in  divorce  proceed- 
ings was  allowed  to  answer  after  default,  upon  terms  that  he 
should  pay  certain  counsel  and  referee's  fees,  and  he  answered, 
but  did  not  pay  all  the  fees  ordered,  and  an  order  was  made 
adjudging  him  guilty  of  contempt  for  such  failure  to  pay,  it  was 
held  that  the  court  had  power  to  strike  out  defendant's  answer 
for  his  refusal  to  obey  its  orders.  Clark  v.  Clark,  i  State  Rep. 
287.  The  surrogate's  court  has  power  to  impose  a  fine  upon  a 
witness  committed  for  contempt  in  refusing  to  testify,  not  ex- 
ceeding the  amount  of  costs  and  expenses,  and  $250  besides. 
Although  actual  loss  or  injury  be  not  shown,  error  therein  can- 
not be  reviewed  on  habeas  corpus  and  certiorari.  Matter  of  Jones, 
6  Civ.  Pro.  250.  In  an  action  by  a  wife  against  her  husband  for 
an  absolute  divorce,  the  court  has  power  to  strike  out  defend- 
ant's answer  for  his  failure  to  comply  with  an  order  requiring 
him  to  pay  alimony  and  counsel  fees,  such  power  not  having 
been  taken  away  by  §^  1773  and  2281,  Code  of  Civil  Procedure. 
Brisbane  v.  Brisbane,  5  Civ.  Pro.  352. 

The  complaint  of  a  party  was  stricken  out  as  a  punishment  for 
a  contempt  for  refusing  to  produce  a  paper  in  possession  of  his 
counsel  in  Shelp  v.  Morrison,  13  Hun,  IIO.  Answer  was  stricken 
out.  Walker  v.  Walker,  82  N.  Y.  260.  See,  also,  McCrea  v. 
McCrca,  58  How.  220.  An  order  to  punish  one  for  a  contempt 
in  the  non-payment  of  alimony  must  adjudge  that  the  failure  to 
pay  had  defeated,  impaired,  or  prejudiced  the  party  applying 
therefor  in  his  rights  ;  if  this  is  omitted  the  order  is  radically 
defective,  and  the  punishment  cannot  be  inflicted.  Mendel  v. 
Mendel,  4  State  Rep.  556.  The  same  principle  is  held  as  to 
invalidity  of  order  in  Fall  Brook  Co.  v.  Hecksher,  id.  657.  The 
application  for  a  favor,  by  a  party  in  contempt,  will  not  be 
granted  until  he  purges  himself  of  the  contempt.  Johnson  v. 
Finney,  i  Paige,  646 ;  Ellingivood  v.  Stevenson,  4  Sandf.  Ch.  366 ; 
Rogers  v.  Paterson,  4  Paige,  450.  Nor  can  the  party  in  contempt 
apply  to  the  court  to  take  any  aggressive  steps,  but  he  may 
appeal  or  move  to  set   aside  the  order  adjudging  him   in  con- 


CIVIL  CONTEMPT.  633 


Art.  6.     The  Punishment. 


tempt;  those  are  adjudging  matters  of  right.  Matter  of  St  ein- 
ert,  24  Hun,  246;  Brinklcy  v.  Brinklcy,  47  N.  Y.  40.  A  resident 
of  the  State,  who,  in  disobedience  of  a  decree  in  divorce  ren- 
dered against  him  on  the  ground  of  adultery,  which  prohibits 
him  from  marrying  again  during  the  life  of  the  divorced  wife, 
goes  to  another  State  and  there  contracts  another  marriage,  im- 
mediately returning  to  this  State  to  live,  cannot,  while  in  such 
contempt,  be  permitted  to  prosecute  an  action  against  his  sec- 
ond wife  for  divorce  on  the  ground  of  adultery.  Marshall  v. 
Marshall,  2  Hun,  238. 

As  a  general  rule,  the  propriety  of  a  commitment  is  not 
examinable  by  another  court  than  the  one  by  which  it  was 
awarded,  but  this  is  subject  to  the  qualification  that  the  conduct 
charged  as  constituting  the  contempt  was  such  that  some  degree 
of  delinquency  or  misbehavior  can  be  predicated  of  it,  for  if  the 
act  is  plainly  indifferent  or  meritorious,  or  if  it  be  only  the  asser- 
tion of  the  undoubted  right  of  the  party,  it  does  not  become  a 
contempt  by  being  so  adjudged.  Matter  of  Hacklcy,  24  N.  Y. 
74;  see  Mitchell's  Case,  12  Abb.  249.  An  order  punishing  for 
contempt  in  violation  of  an  injunction  can  only  be  reviewed 
upon  the  merits,  or  for  alleged  legal  error  on  appeal  from  the 
final  order  adjudging  the  contempt.  Watrous  v.  Kearney,  79 
N.  Y.  496,  reported  below,  11  Hun,  584.  Such  a  motion  may  be 
made  when  previous  order  was  by  default.  Tinkey  v.  Langdon, 
60  How.  180.  Where  an  answer  has  been  stricken  out,  the 
remedy  is  by  application  to  the  court  to  be  let  in.  Walker  v. 
Walker,  82  N.  Y.  260.  As  to  the  right  of  appeal  from  a  final 
order  adjudging  a  party  in  contempt,  see,  also,  McCredie  v. 
Senior,  4  Paige,  378  ;  People  v.  Spaulding,  10  id.  284  ;  7  Hill,  302  ; 
Forbes  v.  Willard,  37  How.  193  ;  People  v.  Healey,  48  Barb.  564; 
People  V.  Sturteva?tt,  9  N.  Y.  263  ;  Livingston  v.  Swift,  23  How. 
I  ;  Brinkley  v.  Brinkley,  47  N.  Y.  40  ;  Sudlozv  v.  Knox,  7  Abb. 
(N.  S.)  411;  Carrington  v.  Fo?ida  Railway  Co.,  52  N.  Y.  583. 
Since  the  present  Code  it  is  held,  in  Matter  of  Dissosway,  91 
N.  Y.  235,  that  an  appeal  was  properly  taken  from  a  decision  of 
a  surrogate's  court  refusing  to  adjudge  a  party  in  contempt  and 
affirming  the  decree  appealed  from.  Where  no  fine  was  imposed 
on  defendant  by  way  of  punishment,  but  wholly  for  the  purpose 
of  indemnity,  the  General  Term  could  not  reduce  the  fine  to  an 
amount  which,  under  §  2284,  could  be  imposed  by  way  of  pun- 


634  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


ishment  for  defendant's  misconduct,  it  having  been  imposed 
originally  under  this  section.  Fall  Brook  Co.  v.  Heckscher,  4 
State  Rep.  657. 

In  Snyder  v.  Van  Ingen,  9  Hun,  569,  an  appeal  to  the  General 
Term  was  sustained  where  a  party  had   been  discharged   from 
imprisonment  for  contempt  on  habeas,  and  he  was  again  brought 
before  the  judge,   retried,  and  more  severe  penalties  imposed. 
An  appeal  may  be  taken  from  the  final  order  ;  it  is  not  necessary 
that   a   commitment    issue.     People   v.    Bono/me,  59  How.  417. 
The  proper  remedy  to  obtain  relief  by  a  party  in  contempt  is  by 
a  motion  in  the  court  in  which  the  order  was  granted  ;  where  a 
judge  who  made  the  order  was  no  longer  a  member  of  the  court, 
it  was  held  the  order  was  properly  made  before  any  judge  sitting 
at    Special    Term.     Davidsons    Case,    13    Abb.    129;    People   v. 
Murphy,  i  Daly,  462.     Where   an   attachment  is  regular  on   its 
face,  with   the   recitals    necessary  to  give  jurisdiction,  a  party 
moving  to  set  it  aside  for  defects  in  the  proceedings  must  show 
affirmatively  the  defect,  or  enough  to  throw  the  burden  of  proof 
on  the  other  party.     Baker  v.  Stephens,  10  Abb   (N.  S.)  i.     In  a 
case  where  it  is  proper  to   impose   any  condition  on  vacating  a 
warrant  of  attachment  for  contempt,  this  must    be   done  in  the 
first  instance,  and  if  an  order  vacating   an   attachment  has  once 
been  entered,  such  order  cannot  be  rescinded  for  the  purpose  of 
imposing  a  condition,  nor  can  it  be  resettled  or  modified.     The 
mode  of  review  is  provided  by  Code,  §§  1356,  1357,  this  being  a 
special  proceeding.     It  is  not  necessary  than  an  order  should  be 
final  in  order  that  an   appeal   may  be  taken   from  it.     Hart  v. 
Johnson,  7  State  Rep.  133. 

A  warrant  to  punish  for  contempt  need  not  specify  the  con- 
tempt  nor  any  of  the  proceedings  upon  which  the  warrant  rests. 
Disobedience  to  an  order  requiring  the  payment  of  money  in 
court  to  the  officers  thereof,  except  where  it  is  due  upon  a  con- 
tract or  for  a  breach  thereof,  may  be  punished  as  for  contempt, 
although  the  amount  thereof  could  be  collected  upon  execution. 
Where  there  is  no  jurisdictional  defect  the  court  will  refuse  to 
review  the  mandate  of  another  court  of  general  jurisdiction  on 
habeas  corpus.  People  ex  rel.  Pond  v.  Tamsen,  15  Misc.  364. 
After  the  issue  of  a  warrant  of  attachment  the  court  cannot  per- 
mit the  accused  to  purge  himself  without  making  reparation  as 
provided  by  the  Code,  §§  2281   and  2284.     People  ex  rel.  Baldwin 


CIVIL   CONTEMPT.  635 


Art.  6.     The  Punishment. 


V.  Miller,  59  St.  Rep.  702,  9  Misc.  3.     A  commitment  which  im- 
poses a  fine  of  a  specified   amount,  with   interest  from  specified 
day,  is  sufificiently  definite.     Estate  of  Mc Master,  14  Civ.    Pro. 
195.     The  commitment  is  not   defective   in  omitting   to    recite, 
that  notice  was  given  to  the  party  imprisoned  of  the  appHcation 
for  orders    which  were  entered  to  supply    defects  in   preceding 
orders  in   the    same    proceeding,    such    preceding    orders   being 
mentioned  in  the  commitment  and  notice  having  been  given  of 
the   application   upon  which    they    were  made.      People  ex  ret. 
Clark  V.  Grant,  13  Civ.  Pro.  183,  ii  St.  Rep.  558.     All  that  can 
be  required  in  a  commitment  is,  that   it   shall  distinctly    apprise 
person  committed  of  the  sum  he  must  pay,  in  order  to  secure  his 
release,  provided  it  sets  out  that  the  contempt  was  calculated  to 
and  did  defeat,  etc.,  the  remedy  of  the  moving  party.     Matter  of 
Bernhard,  16  St.  Rep.  240.     Provisions  of  §  2278  apply  only  to 
proceedings  instituted  by  warrant  of  attachment  and  not  to  those 
commenced  by  order  to  show  cause.     People  ex  rel.  Post  v.  Grants 
13  Civ.  Pro.  305.      This  case  was  reversed  on   appeal,  50  Hun, 
243,  20  St.  Rep.  48,  3  Supp.  142  ;  and   it  was  held   that   under  § 
2285,  it  is  not  sufficient  for  the  commitment  to  refer  to   another 
order  and  judgment  as  specifying  the  acts  required  to  be  done  ; 
the  commitment  must  specify  the  act  to  be  done,  and  no   refer- 
ence can  be  had  to  any  other  paper  to   supply  the  defect.     The 
parties  proceeding  to   enforce   penalties    for  commitment  must 
either  proceed  by  arrest  under  a  certified  copy  of   the   order,  or 
by  arrest  under  a  commitment,  but  they  cannot   do  both  ;  they 
must  elect  their  course   of  procedure  and  be  governed  by  such 
election  in  all  subsequent  stages  of  the  proceeding.     It  seems  that 
if  the  commitment  had  recited  the  order  so   that  it  became  part 
thereof,  it  would    have    been    sufficient,  but    the    order  was  not 
made  part  of  the  commitment  by  a  simple  reference  to  it.    People 
ex  rel.  Post  v.  Grant,    50  Hun,  243,  20  St.  Rep.  48,  3  Supp.  142. 
An  order  for  the  commitment  of  a  witness  for  contempt   is  not 
necessary  under  §  856,  although  the  offender  is  brought  before 
the  judge  on  an  order  to  show  cause.     A  commitment  following 
the  language    of   the  statute  is  good.     In  re  McAdam,  5   Supp. 
387,   distinguishing   People  ex  rel.  McDonald  v.  Keeler,  99   N.  Y. 
463.     An  order  was  made  after  notice,  requiring    a  husband  to 
pay  to  his  wife  certain  arrears  of  alimony  pendente  lite,  within  a 
given  number  of  days,  and  providing  that  upon  non-compliance 


636  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


an  order  of  arrest  and  commitment  for  contempt  of  court  might 
issue  ;  Jicld,  proper  under  §  2281.  Kuhn  v.  Kithn,  4  Supp.  952^ 
23  St.  Rep.  387.  An  order  committing  a  defendant  in  divorce 
for  failure  to  pay  alimony  must  adjudge  that  his  failure  to  pay 
has  defeated,  impaired,  impeded,  or  prejudiced  plaintiff  in  his 
rights.  Mcndall  v.  Mendall,  4  St.  Rep.  556.  Whether  or  not 
the  misconduct  alleged  did  in  fact  defeat,  impair,  impede,  and 
prejudice  the  complaining  party,  is  to  be  determined  from  the 
facts  and  circumstances  in  the  case.  Hart  v.  JoJinson,  43  Hun, 
505.  Where  an  order  expressly  adjudicates  that  the  misconduct 
was  "  calculated  to  and  did  defeat,  impair,  impede  and  prejudice 
a  right  or  remedy  of  the  petitioner,"  and  the  evidence  upon  the 
reference  supports  that  conclusion,  it  is  sufificient  as  an  adjudi- 
cation of  injury  within  §  2284.  Matter  of  Morris,  45  Hun,  167. 
Where  it  was  claimed  that  the  order  was  void  because  it  did  not 
contain  a  statement  that  the  disobedience  referred  to  as  the 
contempt,  had  defeated,  impaired,  impeded,  or  prejudiced  some 
right  of  the  defendants  in  the  former  action,  and  the  contempt, 
the  order,  and  the  affidavit  upon  which  it  was  founded, 
stated  in  detail  the  proceedings  which  it  was  claimed  the  dis- 
obedience affected,  it  was  held  that  this  was  a  full  compliance 
with  the  requirements  of  the  rule  with  respect  to  a  contempt. 
Fischer  v.  Langbcin,  103  N.  Y.  84,  followed.  Prince  Mfg.  Co.  v. 
Princess  Metallic  Paint  Co.,  51  Hun,  443,  20  St.  Rep.  923,  4  Supp. 
348,  affirming  2  Supp.  682. 

A  statement  in  the  order  that  the  contempt  did  hinder,  etc., 
instead  of  saying  in  the  words  of  the  statute  that  the  miscon- 
duct did  hinder,  etc.,  does  not  invalidate  the  order.  Wheelock  v. 
Noonan,  55  Super.  Ct.  302.  A  husband  cannot  be  imprisoned  for 
non-payment  of  referee's  fees,  in  proceedings  against  him  for  a 
divorce,  by  including  that  item  in  the  order  and  judging  him  in 
contempt,  but  the  error  will  not  entitle  him  to  discharge  upon 
habeas  corpus,  unless  the  other  items  upon  which  he  is  properly 
imprisoned  have  been  paid.  People  ex  rel.  Clark  v.  Grant,  13  Civ. 
Pro.  183,  II  St.  Rep.  558.  An  order  directing  an  assignee  for 
creditors  to  pay  over  to  the  receiver  all  the  assigned  estate,  the 
amount  found  due  upon  his  accounting,  is  enforceable  by  execu- 
tion under  §  1240,  and  the  failure  to  pay  over  cannot  be  punished 
as  a  contempt.  J/^Z/rr  <;/ /Axv,  48  Hun,  586.  The  order  judg- 
ing a  receiver  in  contempt  for  non-payment  of   money  was  held 


CIVIL    CONTEMPT.  ^17 


Art.  6.     The  Punishment. 


to  be  erroneous,  where  it  was  uncertain  as  to  whether  he  was  en- 
titled to  be  allowed  for  alleged  expenditures,  and    as  to  whether 
he  had  received  the    full  amount  specified,  and  where  the   order 
failed  to  state  that  damage  to  the  estate  of  that  amount  had  been 
caused  by  the  non-payment.      Weston  v.  Watts,  15   St.  Rep.  123. 
A  defendant  against   whom   an   injunction    has  been  granted,  of 
which  he  has  been  fully  advised,  and  who  acts  in  violation  there- 
of, is  liable  to  punishment  for  contempt.     The   rule  in   proceed- 
ings for  contempt  is  analogous  to  that  in  prosecutions  for  crime, 
and  the  intent  required  to  be  proved  is  not  the  intent  to  violate 
the  order  of  the  court,  but  of  the  act  which  the  law  or  the  order 
of  the  court  forbids.      Gage  v.   Denboiv,  49   Hun,  42.     In   deter- 
mining  whether  parties  are   guilty  of  misconduct   in  failing  to 
obey  a  lawful  mandate  of  the  court,    no   inquiry  into  its  merits 
will  be  allowed.     Kochlcrv.  Fanners  and  Drovers  Bank,   14  Civ. 
Pro.  71.     An  order,  though  erroneous,  is  entitled   to  obedience. 
People  ex  rel.   Post  v.    Grant,  13    Civ.    Pro.    305,  citing  People  v. 
Stiirtevant,  9  N.  Y.   263.     A   motion   to    punish  defendants  for 
contempt  was  granted,  v/here,  they  being  required  by  judgment 
to  deliver  a  check  to  plaintiff,  disobeyed  the  judgment.     Hattoii 
v.  McFaddin,  15  Civ.  Pro.  42,  16  St.    Rep.   944.     A  witness   can- 
not be  punished  for  contempt  for  refusing  to  answer  a  question 
immaterial  and  irrelevant  to  the  issue.     Matter  of  Odell,  6  Den. 
344.     Proceedings  to  punish   an  administratrix   for  contempt  in 
disobeying    a    decree    directing    the    payment    of    money,    are 
addressed  to  the  discretion  of  the  court  ;  and  if  the  respondent 
is  unable  to  comply  with  the  terms  of  the  decree,  and  is  in  actual 
confinement  for  disobedience  to   it,  and  the  circumstances  are 
such  as  to  commend  an  application  for  relief  to  the  court  an  ap- 
plication to  punish    will   be   denied.     Estate  of  Battle,    13   Civ. 
Pro.    27.      An   order   of    the    surrogate    directing  an    executrix 
to  pay  judgment  is  a  decree,  and  can  be  made  a  foundation   for 
contempt   proceedings.     Matter  of  Bernhard,  16   St.    Rep.    241. 
See,  also,  as  to  the  order  directing  the  payment    of   petitioner's 
claim  in   the   proceedings   instituted   by  a  creditor  under  §  717. 
Estate  of  McMaster,  14  Civ.   Pro.  195.     A  failure  to  comply  with 
the  surrogate's  order,  directing  payment  of  money,  is  not  punish- 
able as  contempt  until  an  execution  against  the  property  of  the 
person  proceeded  against   is  issued  and  the   demand  required  by 
§  2268  must  be  made  by  or  on  behalf  of  the  party  to  whom  the 


6^8  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


order  requires  the  payment  to  be  made.  The  proceedings  must 
be  instituted  by  order  to  show  cause.  Union  Trust  Co.  v.  Gage, 
6  Dem.  358.  To  sustain  proceedings  for  contempt  for  failure  to 
comply  with  the  order  directing  a  person  to  discover  and  produce 
for  inspection,  books  and  papers,  under  §  803,  the  order  must 
have  been  served  on  him  personally  ;  service  on  his  attorney  is 
insufficient.  Estate  of  Smith,  15  St.  Rep.  733.  The  committing 
or  continuance  of  forbidden  acts  by  the  servants  of  a  corporation 
after  its  general  officers  were  advised  of  the  issue  of  an  injunction 
and  order  forbidding  such  acts,  was  held  to  be  a  contempt  of 
court  on  the  part  of  the  corporation,  equally  as  if  there  had  been 
strict  service  of  the  injunction.  Rochester,  etc.,  R.  R.  Co.  v.  Lake 
Erie  &  Western  R.  R.  Co.,  48  Hun,  190.  To  sustain  proceedings 
to  punish  debtor  for  contempt,  in  disobeying  the  restraining  pro- 
visions of  order  in  supplementary  proceedings,  it  must  be  shown 
that  the  legal  title  to  the  property  transferred  was  in  the  debtor. 
Beard  V.  Snook,  ^J  Hun,  158.  A  motion  to  punish  a  judgment 
debtor  for  refusal  to  submit  to  examination  before  a  referee  in 
supplementary  proceedings,  was  denied  where  it  appeared  that 
such  referee,  and  the  attorney  for  the  judgment  creditor,  had 
offices  in  the  same  building.  Gilbert  v.  FrothingJiam,,  13  Civ. 
Pro.  288.  An  executor  for  conduct  prejudicial  to  the  legatees 
in  failing  to  account  for  funds  in  his  hands  when  ordered  to  do 
so,  is  guilty  of  contempt  and  properly  fined  the  value  of  the  prop- 
erty misappropriated.  A  fine  of  this  character  is  for  the  benefit 
of  the  creditors.  Matter  of  Pye,  18  App.  Div.  306,  affirmed,  154 
N.  Y.  773.  Where  a  court  having  jurisdiction  grants  an  injunc- 
tion order  it  is  the  duty  of  the  person  enjoined  to  obey  the  in- 
junction until  it  is  vacated  ;  for  disobedience  thereto  he  is  guilty 
of  contempt,  and  it  is  no  answer  to  allege  that  the  plaintiff  had 
no  cause  of  action  and  was  not  entitled  to  recover.  A  fine  of  an 
amount  of  money  equal  to  that  collected  and  used  by  the  defend- 
ant in  violation  of  the  injunction  order  was  held  to  be  properly 
imposed.  Sheffield  v.  Cooper,  2\  App.  Div.  518.  The  fact  that 
the  defendant  has  been  given  by  the  terms  of  the  order  an  op- 
portunity to  comply  with  the  order  before  commitment  issues 
does  not  affect  the  validity  of  the  order.  Matter  of  BlumentJial, 
22  Misc.  704,  distinguishing /)r^c//;//rj/v.  Bliss,  4.^  N.  Y.  Supp.  912. 
In  proceedings  to  have  defendant  adjudged  guilty  of  contempt 
under  subdivision  2  of  §  14,  in  procuring  a  stay  of  proceedings  on 


CIVIL   CONTEMPT.  639 


Art.   6.     The  Punishment. 


appeal  by  putting  in  fictitious  sureties  to  the  undertaking,  and  in 
which  an  order  was  made  adjudging  him  guilty  of  contempt,  it 
was  held  essential  to  the  validity  of  the  order  that  an  adjudication 
or  decision  appear  establishing  that  the  person  for  whose  benefit 
the  fine  was  imposed  has  in  truth  and  fact  been  prejudiced  by  the 
illegal  proceedings  complained  of.  Cleary  v.  Christie,  41  Hun,  566. 
A  precept  or  commitment  may  not  be  issued  without  an  adjudi- 
cation of  contempt,  nor  without  proof  that  the  contempt  has  in- 
jured a  creditor  in  his  right  or  remedy.  Blake  v.  Bolte,  10  Misc. 
333,  31  Supp.  124,  63  St.  Rep.  408,  24  Civ.  Pro.  166.  Miscon- 
duct which  can  be  punished  as  a  civil  contempt  must  be  such  as 
to  defeat,  impair,  etc.,  the  right  of  a  party,  and  it  must  appear 
that  the  alleged  misconduct  has  that  effect.  A  person  cannot  be 
punished  for  failing  to  pay  over  money  or  stand  committed  for 
contempt  until  a  second  order  be  made  after  his  refusal  to  pay- 
the  money,  a  copy  of  the  first  order  having  been  served  upon  him 
and  a  demand  made  for  the  moneys  directed  to  be  paid  thereby. 
First  Nat.  Bank  of  Plattsbiirgh  v.  Fit zpat rick,  80  Hun,  75,  61  St. 
Rep.  766.  An  order  adjudging  a  person  in  contempt  for  disobe- 
dience which  omits  to  state  that  the  misconduct  complained  of 
defeated,  impaired,  etc.,  the  right  or  remedy  of  a  party,  is  fatally 
defective.  Wolf  v.  Biittner,  57  St.  Rep.  861,  6  Misc.  119.  A 
warrant  of  attachment  for  contempt  which  is  not  based  upon  a 
final  order  adjudging  contempt  and  directing  punishment  is  in- 
sufficient on  habeas  corpus  proceedings  to  justify  the  retention  of 
the  respondent.  Matter  of  Crosher,  25  Abb.  N.  C.  89,  1 1  Supp. 
504.  The  amount  of  fine  which  may  be  imposed  under  §§  2281- 
2284  must  be  based  upon  proof  of  damages  actually  sustained. 
Moffatt  V.  Herman,  116  N.  Y.  131,  qaXXw^ Siidlow  v.  Knox,']  Abb. 
(N.  S.)  411  ;  Dcjonge  v.  Brenneman,  23  Hun,  332  ;  Clark  v.  Biningery 
75  N.  Y.  344;  Kingv.  Flynn,  37  Hun,  329;  Moffatt  v.  HermaUy 
116  N.  Y.  131,  17  Civ.  Pro.  357,  affirming  17  Abb.  N.  C.  107, 
reversing  8  Civ.  Pro.  369,  is  distinguished  in  Martin  Cantine  Co. 
v.  Warshauer,  7  Misc.  412,  where  it  is  held  that  where  a  false 
answer  was  interposed  which  prevented  plaintiff  from  collecting 
a  claim  which  he  could  have  otherwise  collected,  the  party  inter- 
posing the  answer  is  guilty  of  contempt.  S.  C.  23  Civ.  Pro.  379, 
28  N.  Y.  Supp.  139,58  St.  Rep.  569.  In  proceedings  to  punish 
for  contempt  in  refusing  to  produce  books  of  a  corporation,  as 
required  by  an  order  and   subpoena,  the  power  of  the  court  to 


640  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


award  an  allowance  by  way  of  indemnity  for  legal  expenses  must 
be  exercised  upon  evidence  in  legal  form,  as  upon  the  trial  of  an 
action.  Fenlon  v.  Dempscy,  50  Hun,  131,  19  St.  Rep.  231,  2  Supp. 
763,  22  Abb.  N.  C.  114,  15  Civ.  Pro.  393.  The  requirement  that 
the  commitment  for  contempt  "  must  specify  .  .  .  the  duration  of 
the  imprisonment  "  does  not  apply  to  the  class  of  contempts  named 
in  the  first  part  of  that  section  "  where  the  misconduct  proved 
consists  of  an  omission  to  perform  an  act  or  duty,  which  it  is  in 
the  power  of  the  offender  to  perform,"  but  the  commitment  in 
such  ca.se  need  only  specify  "  the  act  or  duty  to  be  performed, 
and  the  sum  to  be  paid."  Anonymous,  \'^  K\i\>.^.(Z.  2\6.  A  per- 
son adjudged  guilty  of  contempt  in  not  appearing  and  submitting 
to  examination  in  supplementary  proceedings  can  be  fined  only 
the  costs  of  the  proceedings.  De  Witt  v.  Gnnn,  68  St.  Rep. 
790,  24  Civ.  Pro.  406,  citing  to  the  point  that  the  fine  is  limited 
to  the  actual  injury.  Fenlon  v.  Donpsey,  50  Hun,  131,  26  St.  Rep. 
243,  19  St.  Rep.  231.  Where  it  appears  that  an  order  has  been 
made  that  a  receiver  has  moneys  in  his  hands  which  he  failed  to 
pay  over  on  demand,  actual  loss  and  injury  are  sufficiently  shown 
to  justify  an  order  for  his  commitment.  Such  an  order  is  regular 
notwithstanding  the  fact  that  the  court  did  not  impose  the  pay- 
ment of  the  indemnity  in  the  form  of  a  fine,  it  being  sufficient  to 
state  in  the  order  that  the  moving  parties  were  injured  to  a  cer- 
tain amount  and  requiring  its  payment.  It  is  not  necessary  to 
specify  the  duration  of  the  imprisoment,  as  under  §  2285  it  is  pro- 
vided that  where  the  misconduct  in  question  consists  in  the 
omission  to  perform  an  act  or  duty  which  it  is  in  the  power  of 
the  person  to  perform,  he  shall  be  imprisoned  until  he  performs 
such  act  or  pays  the  fine  imposed.  Where  there  is  no  proof  of 
what  the  costs  and  expenses  had  been,  it  was  held  erroneous  to 
fix  them  at  the  sum  of  $250.  People  exrcl.  Surety  Co.  v.  Anthony, 
7  App.  Div.  132,  citing  People  ex  rel.  Clark  v.  Grant,  11  St. 
Rep.  559.  It  seems  there  must  bean  express  adjudication  within 
the  exact  language  of  the  statute,  that  the  conduct  complained  of 
has  been  such  as  to  defeat,  impair,  etc.,  and  that  an  order  imposing 
a  fine  where  there  is  no  such  adjudication,  should  be  reversed. 
Dinsmoor  v.  Commercial  Travellers  Association,  14  Supp.  673,  38 
St.  Rep.  626.  Where  a  person,  upon  whom  a  subpcena  has  been 
served,  has  been  adjudged  to  have  committed  a  contempt  in  re- 
fusing to  obey  it,  the  court  is  expressly  authorized  by  §  2284  to 


CIVIL   CONTEMPT.  64I 

Art.  6.     The  Punishment. 

impose  a  fine  for  the  disobedience  of  the  subpoena,  though  no 
actual  loss  or  injury  to  the  party  subpoenaing  him  has  been  occa- 
sioned. People  ex  rcl.  Duffus  v.  Broivn,  46  Hun,  320,  distin- 
guishing Carrington  v.  Hiitson,  28  Hun,  371. 

The  court  may  punish  for  contempt  one  who  fails  to  produce 
books  pursuant  to  a  subpoena  duces  tecum.  The  imposition  of 
the  fine  is  not  limited  to  a  case  where  actual  loss  or  injury  is  not 
shown.  Holly  Mfg.  Co.  v.  Vernier,  26  Supp.  581.  In  the  absence 
of  evidence  that  the  defendant's  disobedience  occasioned  any 
actual  loss  or  injury  to  the  plaintiff  beyond  costs  and  expenses 
of  the  proceedings  to  punish,  a  fine  to  the  amount  of  the  judgment 
is  not  authorized.  Devereaux  v.  Clifford,  11  App.  Div.  401. 
Citing  Fall  Brook  Coal  Company  v.  Hecksher,  42  Hun,  534,  which 
holds  that  in  such  a  case  the  court  should  fine  the  defendant  not 
exceeding  $250  in  addition  to  costs  and  expenses  of  the  proceed- 
ings, and  directing  his  imprisonment  until  he  should  appear  and 
submit  to  examination  and  pay  the  fine  and  costs  imposed  upon 
him.  It  seems  that  the  provisions  of  §  2284  as  to  punishment  of 
a  party  for  violation  of  an  order  are  not  exclusive  of  other  pro- 
ceedings, and  that  an  action  may  be  maintained  even  where  the 
contempt  proceedings  are  authorized.  Porous  Plaster  Co.  v. 
Seabury,  4.T,  Hun,  611,  7  St.  Rep.  249.  Contempt  proceedings 
cannot  be  maintained  after  an  injunction  has  been  dissolved  or 
otherwise  ended  to  punish  a  party  for  previous  violation  of  the 
mandate.  Tabor  m.  Manhattan  Ry.  Co.,  14  Misc.  189,  c\t\ngPeck  v. 
Yorks,  32  How.  Pr.  408  ;  iMoat  v.  Holbein,  2  Edw.  Ch.  188  ;  Murad 
V.  Thomas,  6  St.  Rep.  662.  One  who  falsely  justifies  as  surety  on 
an  undertaking  given  to  discharge  an  attachment  is  guilty  of  con- 
tempt under  subdivision  4,  §  14,  of  the  Code.  Where  a  person 
is  adjudged  guilty  and  fined  or  directed  to  perform  some  act 
within  his  power  as  a  punishment,  the  commitment  need  not 
specify  the  term  of  imprisonment.  People  ex  rel.  Wise  v.  Tamsen, 
17  Misc.  212.  An  order  adjudging  defendant  in  contempt  for 
refusal  to  deliver  certain  property  is  void  where  it  is  shown  that 
the  title  to  the  property  is  in  dispute.  Where  there  is  no  proof 
of  loss  to  creditors,  an  order  committing  defendant  for  refusal  to 
deliver  property  to  the  receiver  until  he  pay  a  fine  of  $500  is 
erroneous,  since  under  §  2284  the  court  can  summarily  fine  a 
party  for  misconduct  only  to  an  amount  of  $250  and  costs. 
Gallagher  v.  O'Neill,  3  Supp.  126,  21  St.  Rep.  163.  Courts  will 
41 


642  CIVIL   CONTEMPT. 


Art.  6.     The  Punishment. 


not  permit  the  cour.se  of  justice  to  be  stayed  or  prevented  by 
fictitious  sureties  or  fraudulent  bail.     Where  a  worthless  surety 
has  been   imposed   on   the  court,  the   fraudulent  surety  will  be 
punished  by  a  fine  to  the  end  that  the  loss  occasioned  be  made 
good  if  possible.     Diamond  v.   Knoepel,  3    St.   Rep.  291,    citing 
Hill  V.  LEplatinier,  5   Daly,  534;  Eagan  v.  Lynch,  3  Civ.  Pro. 
236;  Nathans  v.  Hope,  5  Civ.  Pro.  401.     A  party  is  properly  ad- 
judged guilty  of  contempt   in  not  obeying  an  injunction  order, 
unless  it  is  void  for  lack  of  jurisdiction  on  the  part  of  the  judge 
granting    it,    and    may    properly    be   punished   for  disobedience 
thereto.     People  v.    Van  Buren,    136   N.  Y.   252.     The  giving  of 
worthless  sureties  upon  a  bond  to  discharge  a  mechanic's  lien  is 
contempt  of  court  for  which  the  party  may  be  fined  under  §  2284. 
It  is  not  alone  the  right  of  the  lienor  to  ultimate  recovery  in  an 
action  of  foreclosure  which  is  affected  by  the  giving  of  the  worth- 
less bond.     The  bond  takes  the  place  of  the  property,  and  the  law 
contemplates  substantial  security  to  the  lienor.     When  such  a 
bond  is  given,  the  validity  of  the  lien  is  assumed  and  the  right  of 
the  lienor  to  complete  security  in  the  place  of  the  land  is  unques- 
tioned.    The  fine  must  be  limited  to  such  an  amount  as  to  indem- 
nify the  aggrieved  party  for  the  actual  loss  and  injury  sustained 
so  far  as  that  loss  is  in  excess  of  $250  and  costs.     It  seems  that 
the  court  has  power   as  a   condition   of  waiving   imprisonment 
which  it  has  a  right  to  impose,  to  exact  the  performance  of  condi- 
tions which  could  not  be  imposed  as  a  fine.     McAveneyv.  Brush, 
I  App.  Div.  97,  68  St.  Rep.  178. 

The  court  has  no  right  to  fine  arbitrarily,  or  to  take  the 
opinion  of  the  injured  party  as  a  standard,  but  the  adjudication 
as  to  damages  must  be  based  on  evidence.  Simmonds  v.  Sim- 
monds,  6  Week.  Dig.  263.  The  amount  of  a  fine  is  a  matter  of 
computation.  Sudlow  v.  Knox,  7  Abb.  411.  But  where  there 
has  been  actual  injury,  the  court  cannot  impose  a  mere  nominal 
fine.  Lansing  V.  Easton,  7  Paige,  364.  The  amount  of  the  fine 
to  indemnify  must  be  fixed  upon  proof  of  the  damages  sustained, 
according  to  the  rules  of  law  wiiich  would  apply  in  an  action  for 
damages.  Sndloiv  v.  Knox,  4  Abb.  Ct.  App.  Dec.  326.  The 
question  of  damages  may  be  heard  before  a  referee  as  part  of 
the  contempt  proceedings,  and  where  the  testimony  showed 
that  the  party  charged  had,  contrary  to  the  prohibition  of  an  in- 
junction, collected  and  appropriated  a  certain  sum  of  the  assets 


CIVIL   CONTEMPT.  643 


Art.  6.     The  Punishment. 


of  the  moving  party,  it  was  held  that  prima  facie  the  plaintiff 
was  damnified  to  that  extent  by  the  transaction.  Harteaii  v. 
Deer  Park  Blue  Stone  Co.,  3  T.  &  C.  763.  The  party  in  contempt 
must  be  imprisoned  till  the  fine  is  paid.  Lansing  \r.  Easton,  7 
Paige,  364;  People  v.  Compton,  i  Duer,  512,  affirmed,  9  N.  Y. 
263.  A  fine  in  the  amount  of  the  costs  and  expenses  is  all  that  is 
proper,  unless  there  is  an  adjudication  that  the  act  has  produced 
loss.  People  V.  Oliver,  66  Barb.  570.  The  degree  of  punishment 
to  be  inflicted  is  limited  by  this  section  to  a  fine  sufficient  to 
indemnify  the  aggrieved  party  for  the  actual  loss  or  injury  in- 
flicted by  the  misconduct,  and  to  sustain  the  imposition  of  a  fine 
for  loss  or  injury  the  fact  of  the  existence  of  the  loss  must  be 
proved  by  competent  evidence.  Fall  Brook  Co.  y.  Heckshcr,  4 
State  Rep,  657.  Where  there  is  an  adjudication  that  the  mis- 
conduct was  calculated  to,  or  did  defeat  the  rights  or  remedies 
of  the  moving  party,  a  fine  is  proper  and  is  limited  to  $250,  un- 
less actual  loss  or  injury  has  been  suffered,  when  the  fine  will 
cover  such  loss.  In  case  of  no  pecuniary  loss,  only  the  neces- 
sary costs  and  expenses  will  be  imposed.  People  v.  Coinpton,  i 
Duer,  512  ;  Clark  v.  Bininger,  75  N.  Y.  344;  Erie  R.  R.  Co.  v. 
Ramsey,  45  id.  637.  A  party  in  contempt  cannot  be  imprisoned 
until  he  performs  some  designated  act,  unless  he  was  previously 
required  to  do  so  by  the  court,  and  omitted  to  perform  it.  Sim- 
monds  v.  Simmonds,  4  Week.  Dig.  130.  Where  the  court,  in 
punishing  a  violation  of  an  injunction,  ordered  a  party  to  pay 
certain  damages  as  well  as  costs,  and  it  did  not  clearly  appear 
such  damages  had  in  fact  resulted  from  the  act  complained  of, 
the  order  was  reversed.  Lyon  v.  Botchford,  25  Hun,  57.  The 
rule  that  actual  indemnity  to  the  party  will  be  given,  and  upon 
evidence  of  the  facts  was  held  in  Dcjongev.  Brenneman,  23  Hun, 
332  ;  King  v.  Flynn,  37  id.  329.  In  supplementary  proceedings 
the  value  of  the  property  disposed  of,  and  not  the  amount  of 
the  judgment,  regulates  the  amount  of  the  fine.  Reynolds  v. 
Gilchrest,  9  Hun,  203  ;  Ross  v.  Clnssnian,  3  Sandf.  6j6\  Fccly  v. 
Glcnnen,  2  Law  Bull.  19.  Where  $500  was  allowed  for  loss  and 
injury,  on  violation  of  an  injunction,  it  was  held  on  appeal  to 
be  not  as  costs,  but  under  §  2284,  for  actual  damages  sustained 
by  the  misconduct  of  the  defendant.  Brett  v.  Brett,  33  Hun, 
547.  On  proceedings  to  punish  for  contempt  of  mandamus,  the 
fine  is  limited  to  costs  and  expenses  of  the  contempt  proceeding, 


644  CIVIL    CONTEMPT. 


Art.   7.     Miscellaneous  Provisions. 


where  the  contempt  is  not  wilful,  and  no  pecuniary  loss  has 
been  sustained.  The  costs  in  the  mandamus  case  cannot  be  in- 
cluded. The  court  may  include  as  a  fair  item  of  expense  a  com- 
pensation to  the  relator's  attorney  for  his  expenses  in  the  pro- 
ceedings. People  V.  State  Line  R.  R.  Co.,  14  Hun,  371,  afifirmed, 
"j^  N.  Y.  294.  A  counsel  fee  in  excess  of  cost  and  expenses 
cannot  be  added  (compare  33  Hun,  547,  above)  to  the  fine  suffi- 
cient to  indemnify  the  party,  but  it  does  not  invalidate  the 
order.  The  party  may  be  held  till  he  pays  the  legal  items. 
People  V.  Jacobs,  66  N.  Y.  8.  The  council  fees  are  limited  to  the 
contempt  proceedings.  Va7i  ValkoiburgJi  v.  Doolittle,  4  Abb. 
N.  C.  72.  Where  the  contempt  consists  of  interfering  with 
perishable  property,  the  order  should  not  absolutely  require  its 
return,  but  should  liquidate  its  fair  value  to  be  repaid  if  a  return 
is  impossible.  Albany  City  Bank  v.  Schcmcrhorn,  9  Paige,  372, 
reversed  on  another  point,  10  id.  263. 

A  person  interfering  with  property  in  the  possession  of  a  re- 
ceiver under  a  mistake  of  law  will  be  chargeable  with  the  costs 
of  the  proceedings  against  him  for  contempt,  though  he  may  be 
excused  from  further  punishment.  Noe  v.  Gibson,  7  Paige,  513. 
Where  the  party  accused  acted  in  good  faith,  only  motion  fees 
and  disbursements  were  charged  against  him.  People  v.  Cooper, 
20  Hun,  486.  Where  the  sheriff  refused  to  take  the  person 
charged  before  an  officer  to  give  bail,  no  fees  were  allowed  him 
as  against  the  party  in  his  custody.  People  v.  Tafft,  3  Cow.  340. 
Where  a  defendant  in  disobeying  an  injunction  acted  under  the 
erroneous  advice  of  his  counsel,  that  it  was  suspended  by  an  ap- 
peal taken,  the  fine  should  not  exceed  plaintiff's  actual  damages 
and  costs,  no  counsel  fees  to  be  included.  Power  v.  Athens,  19 
Hun,  165.  The  power  of  the  legislature  to  punish  for  a  criminal 
contempt  is  fully  discussed  in  McDonald  v.  Keeler,  99  N.  Y.  463. 

ARTICLE  Vn. 

Miscellaneous  Provisions.    §§  2287-2291. 

§  2287.  Offender  liable  to  indictment. 

A  person,  punished  as  prescribed  in  this  title,  may,  notwithstanding,  be  indicted  for 
the  same  misconduct,  if  it  is  an  indictatjle  offence ;  but  the  court,  before  which  he  is 
convicted,  must,  in  forming  its  sentence,  take  into  consideration  the  previous  punish- 
ment. 

2  R.  S.  §  26. 


CIVIL   CONTEMPT.  645 


Art.  7.     Miscellaneous  Provisions. 


§  2288.  Proceedings  when  accused  does  not  appear. 

Where  a  person,  arrested  by  virtue  of  a  warrant  of  attachment,  has  given  an  under- 
taking for  his  appearance,  as  prescribed  in  this  title  and  fails  to  appear,  on  the  return 
day  of  the  warrant,  the  court  may  either  issue  another  warrant,  or  make  an  order, 
directing  the  undertaking  to  be  prosecuted  ;  or  both. 

Id.  §  27. 

§  2289.  Undertaking;  when  prosecuted  by  person  aggrieved. 

The  order  directing  the  undertaking  to  be  prosecuted,  may,  in  the  discretion  of  the 
court,  direct  the  prosecution  thereof,  by  and  in  the  name  of  any  party  aggrieved  by 
the  misconduct  of  the  accused.  In  such  a  case,  the  plaintiff  may  recover  damages, 
to  the  extent  of  the  loss  or  injury  sustained  by  him,  by  reason  of  the  misconduct, 
together  with  the  costs  and  expenses  of  prosecuting  the  special  proceeding  in  which 
the  warrant  was  issued ;  not  exceeding  the  sum  specified  in  the  undertaking. 

Id.  §§  28  and  29,  am'd;  Co.  Proc.  §  371. 

§  2290.  Id. ;  by  attorney-general,  etc. 

If  no  party  is  aggrieved  by  the  misconduct  of  the  accused,  the  order  must,  and,  in 
any  case  where  the  court  thinks  proper  so  to  direct,  it  may  direct  the  prosecution  of 
the  undertaking,  by  the  attorney-general,  or  by  the  district  attorney  of  the  county 
in  which  it  was  given,  in  the  name  of  the  people.  In  an  action,  brought  pursuant  to 
the  order,  the  people  are  endtled  to  recover  the  entire  sum,  specified  in  the  under- 
taking. Out  of  the  money  collected,  the  court,  which  directed  the  prosecution,  must 
direct  that  the  person,  at  whose  instance  the  warrant  was  issued,  be  paid  such  a  sum 
as  it  thinks  proper,  to  satisfy  the  costs  and  expenses  incurred  by  him,  and  to  com- 
pensate him  for  loss  or  injury  sustained  by  him,  by  reason  of  the  misconduct.  The 
residue  of  the  money  must  be  paid  into  the  treasury  of  the  State. 

Id.  §§  30  and  31. 

§  2291.  Sheriff  liable  for  taking  insufficient  sureties. 

After  the  return  of  an  execution,  issued  upon  a  judgment,  rendered  in  an  action 
upon  the  undertaking,  an  action,  to  recover  the  amount  of  the  judgment,  may  be 
maintained  against  the  sheriff,  where  it  appears  that,  at  the  time  when  the  under- 
taking was  given,  the  sureties  were  insufficient,  and  the  sheriff  had  reasonable  grounds 
to  doubt  their  sufficiency.  Such  an  action  may  be  maintained  by  the  plaintiff,  in 
whose  favor  the  judgment  was  recovered.  If  the  people  were  plaintiffs  the  action 
must  be  prosecuted  by  the  attorney-general  or  the  district-attorney :  and  any  money 
collected  therein  must  be  disposed  of,  as  prescribed  in  the  last  section. 

Id.  §  32. 

Where  a  party  has  been  arrested  upon  an  attachment  for  a 
contempt,  and  has  given  a  bond  with  sureties  for  his  appearance 
at  court,  to  abide  the  order  of  the  court,  and  is  adjudged  to  have 
been  guilty  of  the  misconduct  alleged,  and  punishment  by  fine, 
and  imprisonment  ordered,  the  statute  does  not  authorize  the 
bond  to  be  prosecuted  at  the  same  time  that  a  warrant  of  com- 
mitment is  issued  against  the  party.  It  is  not  the  policy  of  the 
statute  to  give  the  aggrieved  party  two  final  and  complete  reme- 
dies  for  the  same  offence.  Barton  v.  Butts,  32  How.  456.  Where 
the  defendant  in  such  a  proceeding  has  not  appeared  at  all,  and 


646  CIVIL   CONTEMPT. 


Art.  7.     Miscellaneous  Provisions. 


the  bond  has  been  prosecuted  in  pursuance  of  such  an  order,  the 
court  may  still  allow  him  to  appear  upon  terms  at  a  future  term, 
and  answer  interrogatories  to  be  filed  touching  the  contempt. 
S.  C,  citing  People  v.  Miinro,  15  How.  494. 

Precedent  for  Order  to  Prosecute  Bond. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house  in 
the  city  of  Albany,  June  12,    1887  : 

Present  : — Hon.  8.  L.  Mayham,  Justice. 


The  People  ex  rel.  John  Cromwell, 

agst. 

Marinda   Wheeler. 


An  undertaking  having  been  heretofore  made  and  filed  by  Henry 
Wilson  and  John  Merchant,  conditioned  that  Marinda  Wheeler,  the 
defendant  herein,  should  this  day  appear  at  this  term  of  this  court, 
on  an  attachment  against  her  to  answer  for  an  alleged  contempt  in 
refusing  to  pay  over  to  John  Cromwell  the  sum  of  $850  in  herhanc'i, 
applicable  to  the  payment  of  a  certain  judgment  against  her,  as 
directed  by  the  court,  and  the  said  Marinda  Wheeler  having  failed  to 
appear,  according  to  the  terms  of  said  undertaking  :  Now,  on  motion 
of  E.  D,  Ronan,  attorney  for  relator,  it  is  ordered  that  said  under- 
taking, given  as  aforesaid,  be  prosecuted  by  and  in  the  name  of  the 
relator,  John  Cromwell,  and  for  his  benefit,  pursuant  to  the  provi- 
sions of  the  Code  of  Civil  Procedure.  S.   L.    MAYHAM, 

Justice  Supreme  Court. 

Section  2283  seems  to  contemplate  the  imprisonment  of  the 
party  in  contempt  upon  the  order  alone,  a  certified  copy  taking 
the  place  of  the  warrant.  The  precedent,  therefore,  given  for 
warrant,  committing  to  jail  after  adjudication,  will  only  be  neces- 
sary where  the  proceeding  was  commenced  by  attachment  under 
§  2269,  as  there  seems  to  be  no  provision  for  the  imprisonment 
of  the  party  adjudged  in  contempt,  in  such  case,  except  by  | 
2281,  requiring  a  commitment.  The  former  practice  required  a 
commitment  in  any  event,  and  the  precedent  given  may  be  used 
even  under  §  2283,  for  greater  caution. 

A  person  committed  for  contempt  for  non-payment  of  moneys, 
as  ordered  by  the  court,  is  not  entitled  to  the  jail  liberties  on 
giving  the  usual  bond.  People  v.  Bennett,  4  Paige,  103  ;  People  v. 
Rogers,  2  id.  103  ;  People  v.  Cowles,  4  Keyes,  38  ;  Eagan  v.  Lynch, 
3   Civ.  Pro.  236;    Clark  v.    Clark,   2    Law   Bull.   211  ;    Matter  oj 


CIVIL   CONTEMPT.  647 


Art.  7.     Miscellaneous  Provisions. 


Clark,  20  Hun,  551.  Contra,  Ward  v.  Ward,  6  Abb.  (N.  S.)  79, 
appeal  dismissed,  81  N.  Y.  638.  The  history  of  the  power  of 
courts  of  chancery  and  surrogates'  courts  to  punish  as  for  con- 
tempt for  failure  to  pay  over  moneys  as  directed  by  decree,  is 
considered.  People  v.  Marshall,  7  Abb.  N.  C.  380.  The  distinc- 
tion between  the  commitment  for  contempt  for  non-payment  of 
money  and  upon  conviction  for  misconduct,  is  discussed  and 
pointed  out  by  Woodruff,  J.,  in  People  v.  Cotvles,  4  Keyes,  38. 
And  it  is  said  that  in  the  former  case  the  process  is  strictly  and 
purely  remedial,  and  in  the  latter  preventive,  and  in  most  in- 
stances wholly  so. 

Where  a  judgment  debtor,  on  being  arrested  on  an  attach- 
ment, at  once  submits  himself  to  examination,  the  court  will 
ordinarily  accept  his  excuse  and  discharge  him  from  arrest,  but 
not  where  the  debtor  puts  the  creditor  to  expense,  and  raises  all 
possible  objections.  Hilton  v.  Patterson,  18  Abb.  245.  It  was 
said  in  Lansing  v.  Easton,  7  Paige,  364,  that  there  was  no  way  in 
which  a  defendant  imprisoned  for  a  fine  could  be  released,  except 
by  consent  of  the  prosecutor,  until  payment  of  the  fine.  This 
was  before  the  statute  of  1843.  The  application  to  be  discharged 
must  be  on  notice  to  the  adverse  party.  Strobridge  v.  Strobridge, 
21  Hun,  288.  Where  the  inability  appears  to  be  wilful,  the  party 
will  not  be  discharged.  Lansing  v.  Lansing,  i\\  Wow.  2\%.  Where, 
on  an  application  to  be  discharged  for  inability  to  pay,  the  affi- 
davit denied  the  contempt  for  which  he  was  committed,  it  was 
held  that  as  he  denied  a  fact  which  had  been  adjudicated  against 
him,  he  could  not  be  believed  as  to  the  other  statements,  and 
the  application  was  denied.  Palmer  v.  Kelly,  4  Sandf.  Ch.  575. 
An  attorney  who  had  been  confined  in  jail  upward  of  three 
months,  for  non-payment  of  a  fine  imposed  for  contempt,  applied 
to  be  released  because  of  inability  to  pay;  under  the  circum- 
stances, it  appearing  he  had  given  bail  for  $1,000  on  his  arrest, 
the  order  discharging  him  was  reversed,  unless  he  would  give  a 
bond  for  payment  of  the  fine.  Matter  of  Steinert,  29  Hun,  301. 
The  expression  "  unable  to  endure  the  imprisonment"  contem- 
plates something  in  the  nature  of  a  slow  wasting,  a  steady 
diminution  of  the  vital  forces,  tending  unless  arrested  by  sun- 
light, open  air,  etc.,  to  a  complete  destruction  of  the  constitu- 
tion ;  it  does  not  apply  to  malarial  fever.  Moore  \.  Me Mahon, 
20  Hun,  44.     In  Mitchell  v.  Hall,  3  Law  Bull.  23,  it  is  questioned 


648  CIVIL   CONTEMPT. 

Art.  8.     Appeal. 

whether  power  to  relieve  the  defendant  is  given  solely  to  the 
court  out  of  which  the  process  issued,  when  commitment  was 
made  under  §  2457  of  the  Code. 

ARTICLE  VIII. 

Appeal. 

An  appeal  can  only  be  taken  from  a  final  order  in  contempt 
proceedings  and  not  from  a  conditional  order.  Greite  v.  Hein- 
richs,  53  St.  Rep.  851,  71  Hun,  11,  24  Supp.  546. 

A  proceeding  to  punish  a  party  for  contempt  instituted  by  an 
order  to  show  cause  to  enforce  a  judgment  in  an  action  is  not  a 
special  proceeding,  but  a  proceeding  in  an  action,  and  is,  there- 
fore, not  appealable  to  the  Court  of  Appeals.  Jeivellers  Mercan- 
tile Agency  v.  Rothschild,  155  N.  Y.  255. 

A  proceeding  to  punish  defendant  for  contempt  to  enforce  a 
civil  remedy  instituted  by  an  order  to  show  cause  is  a  proceeding 
in  an  action  and  not  a  special  proceeding;  an  order  made  therein, 
even  if  final,  not  being  made  in  a  special  proceeding,  is  not  ap- 
pealable as  of  right,  to  the  Court  of  Appeals.  Where  an  order 
adjudging  defendant  guilty  of  contempt  and  imposing  a  fine  also 
contains  provisions  for  a  reference  to  take  proof  and  report  as  to 
the  damages  sustained  by  the  plaintiff  by  the  acts  and  miscon- 
duct of  the  defendant,  it  is  an  interlocutory  and  not  a  final  order, 
and  consequently  not  appealable,  as  such.  Ray  v.  N.  V.  Bay 
Extension  Bay  Co.,  155  N.  Y.  103,  dismissing  appeal  from  20 
App.  Div.  539;  Jewellers'  Mercantile  Agency  v.  Rothschild,  155 
N.  Y.  255,  following  Pitt  v.  Davison,  37  N.  Y.  235. 

The  appellate  division  has  no  power  to  review  an  order  made 
by  a  surrogate's  court  denying  a  motion  to  vacate  an  order  pun- 
ishing a  person  for  contempt  in  failing  to  obey  a  former  final 
order  and  decree  of  the  same  court,  and  removing  him  as  an  ex- 
ecutor of  an  estate.  Matter  of  Pye,  23  App.  Div.  206;  siib.  noni. 
Van  Hoiitcn  v.  Pyc,  48  Supp.  865,  82  St.  Rep.  865. 


CHAPTER  XV. 

CRIMINAL  AND  LEGISLATIVE  CONTEMPTS. 

PAGE, 

Article  i.  Criminal  contempts.     §§  8-13.     §  143,  Penal  Code....   649 
2.  Legislative  contempts.     Legislative  Law,  §  4 671 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SBC  ART.       PAGB. 


8.  Criminal  contempts  defined 

9.  Punishment  for  criminal  contempts 

10.  Such  contempts  in  view  of  court;  how  punished,  etc. 

11.  Requisites  of  commitment 

12.  Preceding  sections  limited 

13.  Indictment ;  if  offence  is  indictable 


649 
649 
650 
650 
650 
650 


ARTICLE  I. 


Criminal  Contempts.    §§  8-13,  Code  Civil  Procedrre.    §  143, 

Penal  Code. 

§  8.  Criminal  contempt  defined. 

A  court  of  record  has  power  to  punish  for  a  criminal  contempt,  a  person  guilty  of 
either  of  the  following  acts,  and  no  others  : 

1.  Disorderly,  contemptuous,  or  insolent  behavior,  committed  during  its  sitting,  in 
its  immediate  view  and  presence,  and  directly  tending  to  interrupt  its  proceedings,  or 
to  impair  the  respect  due  to  its  authority. 

2.  Breach  of  the  peace,  noise,  or  other  disturbance,  directly  tending  to  interrupt  its 
proceedings. 

3.  Wilful  disobedience  to  its  lawful  mandate. 

4.  Resistance  wilfully  offered  to  its  lawful  mandate. 

5.  Contumacious  and  unlawful  refusal  to  be  sworn  as  a  witness ;  or,  after  being 
sworn,  to  answer  any  legal  and  proper  interrogatory. 

6.  Publication  of  a  false,  or  grossly  inaccurate  report  of  its  proceedings.  But  a 
court  cannot  punish  as  a  contempt,  the  publication  of  a  true,  full,  and  fair  report  of  a 
trial,  argument,  decision,  or  other  proceeding  therein. 

2  R.  S.  276,  §  10. 

§  9.  Punishment  for  criminal  contempts. 

Punishment  for  a  contempt,  specified  in  the  last  section,  may  be  by  fine,  not  ex- 
ceeding two  hundred  and  fifty  dollars,  or  by  imprisonment,  not  exceeding  thirty  days, 
in  the  jail  of  the  county  where  the  court  is  sitting,  or  both,  in  the  discretion  of  the 
court.  Where  a  person  is  committed  to  jail,  for  the  non-payment  of  such  a  fine,  he 
must  be  discharged  at  the  expiration  of  thirty  days ;  but  where  he  is  also  committed 
for  a  definite  time,  the  thirty  days  must  be  computed  from  the  expiration  of  the  de- 
finite time. 

Id.  §  II. 

649 


650  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 


Art.   I.     Criminal  Contempts. 


§  10.  Such  contempts  in  view  of  court ;  how  punished,  etc. 

Such  a  contempt,  committed  in  the  immediate  view  and  presence  of  the  court,  may 
be  punished  summarily;  when  not  so  committed,  the  party  charged  must  be  notified 
of  the  accusation,  and  have  a  reasonable  time  to  make  a  defence. 

Id.  §  12. 

§  11.  Requisites  of  commitment. 

Where  a  person  is  committed  for  such  contempt,  the  particular  circumstances  of 
his  offence  must  be  set  forth  in  the  mandate  of  commitment. 
Id.  §  13- 

§  12.  Preceding  sections  limited. 

The  last  four  sections  do  not  extend  to  a  special  proceeding  to  punish  a  person,  in 
a  case  specified  in  §  14  of  this  act. 
Id.  §  14- 

§  13.  Indictment,  if  ofience  is  indictable. 

Punishment  for  a  contempt,  as  prescribed  in  this  article,  does  not  bar  an  indictment 
for  the  .same  offence  ;  but  where  a  person  who  has  been  so  punished  is  convicted  on 
such  an  indictment,  the  court,  in  sentencing  him,  must  take  into  consideration  the 
previous  punishment. 

Id.  §  15. 

§  143.  [Penal  Code].    Criminal  contempts. 

A  person  who  commits  a  contempt  of  court,  of  any  one  of  the  following  kinds,  is 
guilty  of  a  misdemeanor : 

1.  Disorderly,  contemptuous,  or  insolent  behavior,  committed  during  the  sitting  of 
the  court,  in  its  immediate  view  and  presence,  and  directly  tending  to  interrupt  its 
proceedings,  or  to  impair  the  respect  due  its  authority. 

2.  Behavior  of  the  like  character,  committed  in  the  presence  of  a  referee  or  referees, 
while  actually  engaged  in  a  trial  or  hearing,  pursuant  to  the  order  of  the  court,  or  in 
the  presence  of  a  jury,  while  actually  sitting  for  the  trial  of  a  cause,  or  upon  an  inquest 
or  other  proceeding  authorized  by  law. 

3.  Breach  of  the  peace,  noise,  or  other  disturbance,  directly  tending  to  interrupt  the 
proceedings  of  a  court,  jury,  or  referee. 

4.  Wilful  disobedience  to  the  lawful  process  or  other  mandate  of  a  court. 

5.  Resistance  wilfully  offered  to  its  lawful  process  or  other  mandate. 

6.  Contumacious  and  unlawful  refusal  to  be  sworn  as  a  witness,  or,  after  being 
sworn,  to  answer  any  legal  and  proper  interrogatory. 

7.  Publication  of  a  false  or  grossly  inaccurate  report  of  its  proceedings.  But  no 
person  can  be  punished  as  provided  in  this  section,  for  publishing  a  true,  full,  and  fair 
report  of  a  trial,  argument,  decision,  or  other  proceeding  had  in  court. 

Any  disorderly,  contemptuous,  or  insolent  behavior  committed 
in  the  presence  of  any  one  of  the  constituent  members  of  the 
court,  while  engaged  in  the  business  devolved  upon  it  by  law,  is 
a  contempt  committed  upon  it  in  the  immediate  view  of  the 
court  within  the  statute.  The  case  of  the  newspaper  reporter  in 
secreting  himself  in  a  room,  into  which  the  jury  of  the  Court  of 
Oyer  and  Terminer  were  about  to  retire,  remaining  there,  and, 
overhearing  their  deliberation,   taking  short   notes  thereof,  and 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  65 1 


Art.    I.     Criminal  Contempts. 


subsequently  printing  his  recollection  of  the  debate  between  the 
members  of  the  jury,  amounts  to  a  criminal  contempt  committed 
in  the  immediate   view  and  presence   of  the  court,  and  the  fact 
that  the  person  committing  the  contempt  was,  when  discovered, 
brought  before  the  judge,  who  had  no  personal  knowledge  of  the 
offence  and  consequently  allowed  him  to  depart,  does  not  con- 
stitute a  judicial  determination  upon  the  offence,  and  subsequent 
proceedings,  by  order  to  show  cause,   are  not   objectionable  as 
placing  the  respondent  twice  in  jeopardy.     Matter  of  Choatc,  24 
Abb.  N.  C.  430,  18  Civ.  Pro.  180,  8  N.  Y.  Crim.  i,  9  Supp.  321, 
56  Hun,  351,  30  St.  Rep.  728,   18  Civ.  Pro.  230,  8  N.  Y.  Crim.  31, 
afifirmed  without  opinion  under  title  People  ex  rel.  Choate  v.  Bar- 
rett, 121  N.  Y.  678.     (See  Civil  Contempt,  ante,  and  cases  cited.) 
Proceedings  for  punishment   for  criminal   contempt  are  not  pro- 
vided for  in  the  Code  of   Criminal   Procedure,   nor  is  a  criminal 
contempt  there  defined,  or  a  punishment  prescribed,  except  in  § 
619,  which  refers  to  cases  of  disobedience  to  process,  and  refusal 
to  answer  as  witness,  and  in  these  cases  the  remedy  is  referred 
to  the  procedure  prescribed    in   civil   cases  provided   for  in  the 
Code  of  Civ.  Proc.     No  provision   is  made  in  the  Code  of  Civ. 
Proc.  for  proceedings  to  punish  for  contempt,  or  to  review  any 
order  made  in  such  proceeding.     People  ex  rel.    Taylor  v.  Forbes, 
143  N.  Y.  220,  reversing  jy   Hun,   612.     A   punishment  as  for  a 
criminal  contempt  imposed  in  a  proceeding  based  upon  the  pub- 
lication of  newspaper  articles  concerning  the  judge  and  proceed- 
ings in  his  court  cannot  be  sustained  when  the  final  order  entered 
in  the  proceeding  fails  to  state  the  principal  circumstances  of  the 
offences  as  required  by  §  11,  so  as  to  show  whether  or  not  the 
adjudication  rested  upon  the  only  ground   on  which  a  criminal 
contempt  can  be  based  upon  a  publication,  namely,  the  publica- 
tion of  a  false  or  grossly  inaccurate   report  of  the  proceedings  of 
the  court  under  §  8.     People  ex  rel.  Barnes  v.  Court  of  Sessions  of 
Albany  County,    147  N.  Y.  290,  reversing  82   Hun,  242.     In  82 
Hun,  it  is  held,  that  the  practice  of  the  courts  for  the  punish- 
ment of  a  criminal  contempt  is  not  regulated,  except  as  prescribed 
by  §  TO  of  the  Code  of  Civil  Procedure,  that  the  provisions  of  §§ 
2266  to  2292  of  the  Code  refers  to  the  practice  in  cases  of  civil 
contempt  and  not  to  cases  enumerated  in  §  8  of  the  Code,  except 
as  to  the  acts  enumerated  in   §   8,  also  enumerated  in  §  14,  and 
which  have  resulted  in  the  rights  of  remedies  of  a  party  to  a  civil 


6s2  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 


Art.   I.     Criminal  Contempts. 


action  or  special  proceeding  being  defeated,  impaired,  etc.     The 
refusal  of  a  witness  to  answer  a  proper  question  before  a  grand 
jury  is  punishable  as  a  contempt.     When  the  refusal  was  reiterated 
in  the  presence  of  the  court  and  in  the  presence  of  the  witness 
and  he  did  not  deny,  but  justified  the   same  and   reiterated  his 
refusal,  the  contempt  is  one  "  in  the  immediate  presence  and  view 
of  the  court,"  and  no  afifidavit  or  evidence  is  requisite  to  the  com- 
mitment.    The  appellate  court  before  which  the  propriety  of  the 
commitment  is  brought  either  by  certiorari  or  by  habeas  corpus 
is  bound  to  discharge  the    prisoner    where   the  act  charged  as 
criminal  is  necessarily    innocent  or    justifiable,    or    where    it    is 
the  mere   assertion  of  a    constitutional    right.      The    adjudica- 
tion   of    the    court    in    which    the    alleged    contempt   occurred, 
while  conclusive  with  the  party  committing  the   act  of   which 
he  was  convicted,  and  of  its  character,  when  that  according  to  the 
circumstances   may  be  meritorious  or  otherwise,  cannot  establish 
as    a    contempt   that    which  the  law  entitled   the    party  to    do. 
An  order  made  in  a  proceeding  to  punish  for  criminal  contempt 
may  be  reviewed  by  certiorari.     The  provisions  of  the   Code  of 
Criminal   Procedure  to  the   effect  that  judgments  and  orders  in 
criminal  cases  and  in  '•  special  proceedings  of  a  criminal  nature  " 
may  be  reviewed  only  by  appeal,  does   not   include  proceedings 
to  punish    for  criminal   contempt.     The  provisions  of  the  con- 
stitution and  statutes  protect  a  person   called   as  a  witness  in 
any  judicial    or    other    proceeding  against    himself    or    upon   a 
trial  against   others,   from    being  compelled    to    disclose    facts 
and    circumstances   that    can    be    used  against  him    as  tending 
to  connect  him  with  any  criminal  evidence  which  may  then  or 
thereafter  be  used  or  charged  against  him,  or  the  sources  from 
which  evidence  of  the  commission  or  his  connection  with  it  may 
be  obtained.     The  witness  is  always  the  judge  in  such  a  case  of 
what  the  effect  of  the  answer  sought  to  be  drawn  from  him  might 
be,  and  if  to  his  mind  it  might  constitute  a  link   in  the  chain  of 
evidence  suf^cient   to    convict   him,  if  other  facts  are  shown,  he 
may  remain  silent,  unless  it  is  perfectly  clear  that  he  is  mistaken 
and    that  the  answer  cannot   injure   him   or  subject   him  to  the 
penalty  of   a  prosecution.     So  held  in  proceedings  to  punish  for 
contempt  for  a  refusal  to  answer  questions.     People  ex  rcl.  Taylor 
v.  Forbes,  143  N.  Y.  219,  reversing   -j-j   Hun,  612.     In    People  ex 
rel.  Davis  v.  Sturtcvant,  9  N.  Y.  263,  the   power  of  the  court  to 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  653 

Art.   I.     Criminal  Contempts. 

punish  for  contempt  for  disobedience  of  an  injunction  is  dis- 
cussed, and  it  is  said  upon  the  question  as  to  whether  a  party  is 
guilty  of  criminal  contempt,  that  the  question  of  jurisdiction  does 
not  involve  an  inquiry  whether  the  case  made  by  the  complaint 
entitles  the  plaintiff  to  relief,  but  only  whether  the  court  had 
power  to  decide  whether  it  entitled  them  to  relief  or  not,  and  the 
rule  is  reiterated  that  an  injunction  granted  in  a  case  where  the 
court  has  jurisdiction,  though  erroneously  granted,  is  voidable 
only  and  not  void,  and  until  set  aside  must  be  obeyed.  To  war- 
rant a  punishment  for  contempt  in  violating  a  judgment  or  order 
of  the  court,  the  mandate  alleged  to  have  been  violated  should 
be  clearly  expressed,  and  not  applied  to  the  act  complained  of  until 
a  reasonable  certainty  is  shown  that  it  had  been  violated.  Ketch- 
iim  V .  Edzvards,  153  N.  Y.  534.  The  rule  is  reiterated  that  an 
order  of  a  court  having  jurisdiction  must  be  implicitly  obeyed, 
however  erroneous  it  may  be,  and  it  is  no  defence  when  called 
upon  to  answer  for  disobedience  that  the  order  or  judgment  was 
erroneous  or  broader  than  the  facts  warranted,  or  has  given  relief 
beyond  what  was  demanded  and  what  the  facts  justified.  The 
interest  in  maintaining  respect  for  an  order  of  the  court  forbids 
that  litigants  should  be  permitted,  under  a  plea  of  hardship,  real 
or  imaginary,  to  set  at  naught  the  orders  and  decrees  of  the  court 
however  improvidently  granted,  if  it  even  seems  certain  that  the 
court  granted  them  under  misapprehension  or  mistake.  People 
ex  rcl.  Davis  v.  Stiirtevant,  9  N.  Y.  263,  is  cited,  and  also  Erie  R. 
R.  Co.  V.  Ramsay,  45  N.  Y.  6}^"]  ;  KoeJilcr  v.  Farmers  Nat.  Bk. 
117  N.  Y.  661  ;  People  v.  Pendleton,  64  N.  Y.  622,  distinguished  in 

7  App.  Div.  43.  An  act  which  is  not  a  civil  or  private  contempt 
and  which  is  not  enumerated  among  the  civil  contempts  under  § 

8  of  the  Code,  is  not  a  contempt,  although  it  may  be  punishable 
as  a  misdemeanor.  It  was  adjudged  that  a  juror  who  went  to  the 
scene  of  the  affray  for  the  purpose  of  acquainting  himself  with 
the  locality  was  not  guilty  of  contempt.  The  distinction  between 
private  or  civil  contempt  and  public  or  criminal  contempt  is 
pointed  out  in  People  ex  rel.  Munsell  v.  Court  of  Oyer  &  Terminer, 
loi  N.  Y.  245.  Where  a  witness  duly  summoned  to  testify 
before  a  grand  jury  refuses  to  answer  proper  questions,  the  court 
has  power  to  commit  him  to  the  county  jail  for  contempt  until 
he  shall  have  answered  such  question,  and  such  commitment  is 
regular  and   lawful  both  under  the  common  law  and  the  statutes 


654  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

of  the  State.  The  justice  and  propriety  of  the  commitment. 
cannot  be  reviewed  by  habeas  corpus.  People  ex  rel.  Phelps  v. 
Fancher,  2  Hun,  226.  To  punish  a  party  in  failing  to  appearand 
be  examined  as  a  witness  before  trial,  a  copy  of  the  order  re- 
quiring him  to  appear  must  have  been  personally  served  upon  him 
Loop  V.  Gould,  17  Hun,  585,  citing  Tebo  v.  Baker,  19  A.  L.  J. 
398.  The  provisions  of  the  Code  prescribing  the  punishment  to 
be  inflicted  upon  one  guilty  of  criminal  contempt  does  not  apply 
to  proceedings  to  punish  for  civil  contempt.  King  v.  Fliiin,  37 
Hun,  329.  On  fining  a  party  for  contempt  the  court  will  adhere 
strictly  to  what  is  proven,  taking  nothing  upon  inference  and 
giving  him  the  benefit  of  every  doubt  and  defect  in  the  proof. 
Van  Valkenburgh  v.  Doolittle,  4  Abb.  N.  C.  72.  Punishment  under 
the  Code  of  Civil  Procedure  is  a  bar  to  a  proceeding  under  §  143 
of  the  Penal  Code  for  punishment  as  for  a  misdemeanor.  People 
V.  Meakiin,  44  St.  Rep.  748. 

The  practice  of  the  courts  for  puishment  of  criminal  contempt 
is  not  regulated  by  statute  except  as  prescribed  by  §  lO  of  the 
Code.  The  provisions  of  §§  2266-2292  refer  to  the  practice  in 
cases  of  civil  contempt  and  not  to  those  enumerated  under  §  8, 
except  as  to  the  acts  enumerated  in  §  8  which  are  also  enume- 
rated under  §  14  of  the  Code  of  Civil  Procedure,  and  have  re- 
sulted in  the  rights  or  remedies  of  a  party  to  a  civil  action  or 
special  proceeding  being  defeated,  impaired,  impeded  or  prej- 
udiced thereby,  where  the  offending  party  is  sought  to  be  pun- 
ished, as  for  a  civil  or  private  contempt,  upon  the  motion  of  the 
party  injured.  People  ex  rel.  Barnes  v.  Court  of  Sessions,  82  Hun, 
242.  Reversed  in  147  N.  Y.  290,  upon  the  ground  that  the  final 
order  entered  in  the  proceeding  failed  to  state  the  particular  cir- 
cumstances of  the  offence  as  required  by  §  1 1  of  the  Code  of  Civil 
Procedure  so  as  to  show  whether  or  not  the  adjudication  rested 
upon  the  only  ground  on  which  a  criminal  contempt  can  be  based, 
viz.:  objection  to  a  gross  and  inaccurate  report  of  the  proceed- 
ings of  the  court.  Opinion  by  Haight,  J.,  contains  a  discussion 
as  to  the  nature  of  adjudication  in  contempt  proceedings. 

The  following  are  contempts  by  statute  and  seem,  at  least  in 
the  main,  to  be  properly  classed  as  criminal  contempts.  Section 
2267  has  already  been  referred  to  under  the  head  of  Civil  Con- 
tempts as  being  practically  applicable,  if  at  all,  to  criminal  con- 
tempts only. 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  655 

Art.   I.     Criminal  Contempts. 

The  provisions  of  §  853  are  as  follows  : 

§  853.  Penalty  for  disobedience. 

A  person  so  subpoenaed,  who  fails,  without  reasonable  excuse,  to  obey  the  subpoena, 
or  a  person  who  fails,  without  reasonable  excuse,  to  obey  an  order,  duly  served  upoa 
him,  made  by  the  court,  or  a  judge,  in  an  action,  before  or  after  final  judgment  there- 
in, requiring  him  to  attend  and  be  examined,  or  so  to  attend,  and  bring  with  him  a 
book  or  paper,  is  liable,  in  addition  to  punishment  for  contempt,  for  the  damages  sus- 
tained by  the  party  aggrieved  in  consequence  of  the  failure,  and  fifty  dollars  in  addition 
thereto.  Those  sums  may  be  recovered  in  one  action,  or  in  separate  actions.  If  he 
is  a  party  to  the  action  in  which  he  was  subpoenaed,  the  court  may,  as  an  additional 
punishment,  strike  out  his  pleading. 

Section  855  ct  .y^^^.  provides  a  method  of  punishment  of  persons 
subpoenaed  where  the  subpoena  is  issued  by  a  judge,  arbitrator, 
etc. 

Laws  of  i860,  chap.  39,  §§  1-3,  provide  for  the  punishment  of 
a  witness  refusing  to  appear  before  a  committee  of  the  common 
council. 

Under  §  1444  of  the  Code  a  person  committing  waste  may  be 
punished  as  for  contempt. 

Under  §  2709  a  refusal  to  be  sworn  or  answer  a  question  in 
proceedings  before  a  surrogate  to  discover  property  withheld  is 
punishable  as  for  contempt. 

On  an  accounting  in  a  general  assignment  for  the  benefit  of 
creditors,  the  court  has,  under  §  20,  subdivision  8,  power  to 
punish  as  for  contempt  any  disobedience  or  violation  of  an  order 
made  or  process  served  under  the  provisions  of  the  act.  The 
court  also  has  power  on  the  application  of  either  party  to  require  a 
sheriff  to  return  inventory  in  attachment  proceedings,  and  dis- 
obedience to  such  order  may  be  punished  as  for  contempt. 
Code,  §  681. 

The  court  may  also  punish  an  omission  to  make  a  return  re- 
quired by  writ  of  certiorari  or  by  an  order  for  further  return  as 
directed  by  §  2135. 

In  replevin  proceedings,  if  the  sheriff  fails  to  comply  with  the 
provisions  of  §  171 5,  after  proper  notice  given  to  him  to  show 
cause,  he  may  be  punished  for  disobedience  as  for  contempt  of 
court.     Code,  §  17 16. 

Under  chap.  310  of  Laws  of  1886,  §  9,  the  receiver  of 
an  insolvent  corporation  may  require  the  clerk  of  a  county  in 
which  suit  is  brought  to  issue  subpoenas  to  compel  the  attend- 
ance of  witnesses,  and    disobedience  to    such  subpoenas  is  con- 


656  CRIMINAL  AND    LEGISLATIVE   CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

tempt  and  shall  be  punishable  as  other  contempts  are  punish- 
able. 

Under  §  3247  of  the  Code  certain  provisions  are  made  for 
punishment  for  failure  to  pay  costs  as  for  contempt. 

§  1716.  Return,  etc.,  by  sheriff;  how  compelled. 

If  the  sheriff  fails  to  comply  with  the  last  section,  either  party  may  require  him  so 
to  do,  within  ten  days  after  service  of  a  notice  to  that  effect,  or  to  show  cause,  at  a 
term  of  the  court,  designated  in  the  notice,  why  he  should  not  be  punished  for  con- 
tempt of  the  court.  The  notice  may  be  served  at  any  time  before  final  judgment,  ex- 
cept that  it  cannot  be  served  on  the  part  of  the  defendant  before  answer.  An 
omission  to  comply  with  such  a  notice  is  punishable  as  a  contempt  of  the  court. 

§  680.  Punishable  as  crime  and  contempt. 

A  criminal  act  is  not  the  less  punishable  as  a  crime,  because  it  is  also  declared  to 
be  punishable  as  a  contempt  of  court. 

§  681.  Mitigation  of  punishment. 

V/here  it  appears,  at  the  time  of  passing  sentence  on  a  person  convicted,  that  he  has 
already  paid  a  fine  or  suffered  an  imprisonment  for  the  act  of  which  he  stands  con- 
victed, under  an  order  adjudging  it  a  contempt,  the  court  passing  sentence,  may  miti- 
gate the  punishment  to  be  imposed  in  its  discretion. 

Under  §  874  a  person  failing  to  obey  an  order  to  appear  in 
proceedings  to  take  a  deposition  to  be  used  within  the  State  is 
guilty  of  contempt  if  he  fails  to  obey  the  subpoena.  Like 
provisions  are  made  under  §  920  of  the  Code,  and  under 
§  635  of  the  Code  of  Criminal  Procedure.  Under  §§  807- 
8  of  the  Code  provision  is  made  for  the  punishment  as  for 
contempt  for  disobedience  to  an  order  granting  a  discovery 
of  books,  papers,  etc.  Under  §  1773  payment  of  a  sum  of 
money  directed  to  be  paid  by  the  husband  as  alimony  may  be 
enforced  by  proceedings  as  for  contempt.  Under  §  161 8  obedience 
to  an  order  may  be  enforced  by  proceedings  to  punish  as  for  con- 
tempt. Section  5  of  chapter  213  of  the  Laws  of  1887  provide 
for  punishment  as  for  a  criminal  contempt  of  a  person  who  fails  to 
appear,  refuses  to  answer  or  to  produce  books,  papers,  etc.,  as  pro- 
vided for  in  that  act.  This  act  relates  to  examination  by  the 
governor  of  applications  for  clemency.  Disobedience  to  a  sub- 
prena  or  refusal  to  be  sworn  or  testify  may  be  punished  by  the 
court  or  magistrate  as  for  criminal  contempt  in  the  manner  pro- 
vided for  in  the  Code  of  Civil  Procedure,  and  Criminal  Code,  § 
619.  Subpoenas  may  be  issued  and  disobedience  thereto  punished 
as  for  contempt.  See  §  952  of  the  Criminal  Code.  A  violation  of 
the  provisions  of  §  242   of  the   Code   of   Criminal   Procedure   is, 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  657 

Art.   I.     Criminal  Contempts. 

under  §  243,  punishable  by  the  court  as  for  a  contempt.  A  person 
is  not  entitled  to  a  writ  of  habeas  corpus  or  a  writ  of  certiorari 
where  he  is  detained  by  an  order  made  in  a  special  proceeding 
except  to  punish  him  for  contempt.  Code,  §  2016.  Under  the 
provisions  of  §  2032  the  court  or  judge  must,  in  proceedings  on 
writ  of  habeas  corpus,  make  a  final  order  to  remand  the  prisoner 
if  it  appears  that  he  is  not  detained  in  custody  by  a  final  order  of 
a  competent  tribunal  made  in  a  special  proceeding  except  to 
punish  for  contempt.  A  violation  of  §  349  of  the  Penal  Code,  by 
making  an  application  for  an  order  to  stay  a  trial  before  one 
judge  that  had  been  made  before  another  is  contempt  of  court. 
Section  350  of  Code.  Failure  to  attend  as  a  juror  in  proceedings 
to  have  a  person  declared  a  lunatic  is  contempt  under  §  2330. 
Failureof  a  juror  to  attend  on  an  adjourned  day  in  a  justices'  court 
is  contempt  of  court.  Section  2993.  Section  3001  et  seq.  pro- 
vides for  the  punishment  of  witnesses  in  justices'  court  w^ho  re- 
fuse to  be  sworn  or  afifirm.  No  person  shall  be  imprisoned  within 
the  prison  walls  of  any  jail  for  a  longer  period  of  three  months 
under  an  execution  or  any  other  mandate  against  the  person  to 
enforce  the  recovery  of  a  sum  of  money  less  than  five  hundred 
dollar  in  amount  or  under  a  commitment  upon  a  fine  for  con- 
tempt of  court  in  the  non-payment  of  alimony  or  counsel  fees  in 
a  divorce  case  where  the  amount  so  to  be  paid  is  less  than  the  sum 
of  five  hundred  dollars  ;  and  where  the  amount  in  either  of  said 
cases  is  five  hundred  dollars  or  over,  such  imprisonment  shall  not 
continue  for  a  longer  period  than  six  months.  *  *  *  (Code,  §  ill.) 
Under  §  351  the  county  court  is  not  authorized  to  remit  a  fine 
imposed  for  actual  contempt  of  court,  as  provided  for  in  previous 
section.  By  the  provisions  of  the  County  Law,  §  92,  "  persons 
in  custody  on  civil  process  or  committed  for  contempt,  or  de- 
tained as  witnesses,  shall  not  be  put  or  kept  in  the  same  room 
with  persons  kept  for  trial  or  examination  upon  a  criminal  charge 
or  convicts  under  sentence."  By  the  previous  section  each 
county  jail  must  contain  a  sufficient  number  of  rooms  for  the 
separate  confinement  of  persons  kept  on  civil  process  or  for  con- 
tempt. Under  §  718  of  the  Code,  where  the  court  has  directed 
the  deposit  or  delivery  as  prescribed  in  the  preceding  section,  and 
where  a  judgment  directs  a  party  to  make  a  deposit  or  delivery 
or  convey  real  property,  failure  to  obey  such  direction  is  a  con- 
tempt. 
42 


6$S  CRIMINAL   AND    LEGISLATIVE    CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

§  2870.  Criminal  contempt. 

A  justice  of  the  peace  has  power  to  punish  for  a  criminal  contempt  a  person  guilty 
of  either  of  the  following  acts  : 

r.  Disorderly,  contemptuous,  or  insolent  behavior  towards  him  while  engaged  in 
the  trial  of  an  action,  the  rendering  of  a  judgment,  or  any  other  judicial  proceeding  ; 
where  such  behavior  directly  tends  to  interrupt  the  proceedings,  or  to  impair  the  re- 
spect due  to  his  authority. 

2.  Breach  of  the  peace,  noise,  or  other  disturbance,  directly  tending  to  interrupt  his 
official  proceedings. 

3.  Resistance  wilfully  offered  in  his  presence  to  the  execution  of  his  lawful 
mandate. 

He  has  not  power  to  punish,  for  a  criminal  contempt,  in  any  other  case. 

The  sections  following  §  2870  provide  for  the  manner  in  which 
such  contempt  proceedings  shall  be  taken.  Traffic  in  liquor  after 
an  injunction  has  been  granted  pursuant  to  §  29  of  the  Liquor 
Tax  Law  is  contempt.  Failure  to  make  a  return  to  a  writ  of 
mandamus  may  be  punished  as  for  a  contempt.  Code,  §  2073. 
Under  §  103  of  the  Code  of  Criminal  Procedure,  in  case  of  riots, 
etc.,  the  sheriff  or  other  officer  must  certify  to  the  court  in  which 
the  process  was  issued  the  names  of  the  persons  who  resist  the 
process,  and  their  aiders  and  abettors,  so  that  they  may  be  pro- 
ceeded against  as  for  contempt.  An  application  for  an  order  for- 
bidden by  §§  776-yyy  is  contempt  under  §  778.  As  to  the  pro- 
visions that  refer  to  an  order  directing  the  payment  of  money  by 
contempt,  see  §  779.  Section  338  provides  that  the  mandate  of 
the  city  court  can  be  executed  only  in  the  city  of  New  York, 
except  an  order  to  show  cause  why  a  person  should  not  be  pun- 
ished for  contempt,  which  may  be  served  by  any  person  in  any 
part  of  the  State.  Section  724  of  the  Penal  Code  provides  that 
that  Code  shall  not  affect  any  power  conferred  by  law  upon  any 
public  body,  tribunal,  or  officers  to  impose  or  inflict  punishment 
for  contempt.  Failure  on  the  part  of  an  attorney  whose  name  is 
subscribed  to  the  pleading  in  which  scandalous  matter  has  been 
stricken  out  to  pay  costs  of  motion  may  be  punished  for  contempt. 
Code  Civ.  Pro.  §  545.  The  provisions  of  that  article  of  the  Code 
relative  to  the  service  of  papers  docs  not  apply  to  service  of  a 
paper  to  bring  a  party  into  contempt.  Section  802  of  Code. 
Section  31  of  the  State  Charities  Law  provides  that  obedience  to 
the  orders  authorized  by  Article  IL  of  the  act  shall  be  enforced 
in  the  same  manner  as  obedience  is  enforced  to  the  order  or  man- 
date of  a  court  of  record.  Under  §  2007  certain  costs  awarded  by 
final  order  in  special  proceedings  may  be  enforced  by  contempt 


CRIMINAL  AND    LEGISLATIVE   CONTEMPTS.  659 

Art.   I.     Criminal  Contempts. 

proceedings.  Obedience  to  certain  order  made  under  the  Stock 
Corporation  Law  may  be  enforced  by  proceedings  as  for  con- 
tempt. Section  51,  Stock  Corporation  Law.  Disobedience  to 
an  order  made  in  supplementary  proceedings  may  be  punished 
as  for  contempt.  Section  2457.  Under  §  2579  an  appeal  from 
a  decree  directing  the  commitment  for  disobedience  of  a  direction 
of  the  surrogate  or  for  refusal  to  testify  or  obey  a  subpoena  does 
not  stay  the  execution  of  the  order  or  decree.  Disobedience  to 
a  direction  made  by  the  surrogate  under  §  2602  with  reference  to 
the  custody  of  money  or  other  property  of  an  estate  as  between 
co-executors  or  administrators  is  punishable  as  for  a  contempt. 
Under  §  1018  a  referee  has  power  to  punish  a  witness  for  con- 
tempt for  non-attendance,  refusal  to  be  sworn  and  testify.  Sec- 
tion 704  of  the  Code  of  Criminal  Procedure  contains  provisions 
for  the  punishment  of  jurors  failing  to  attend  when  duly  sum- 
moned. Section  709  of  the  Criminal  Code  provides  for  the  pun- 
ishment of  an  officer  not  returning  the  jury  list. 

Order  that  Attachment  Issue. 

SUPREME  COURT— OF  Kings  County. 


The  People  ex  rel.  William  J.  Gaynor, 

agst. 

John  Y.  McKane  et  al. 


.78  Hun,  155. 


On  reading  and  filing  the  summons  herein,  and  by  the  complaint 

verified   November   6,    1893,    the    affidavits    herein    of and 

,    verified ,    the    injunction    order    herein    granted    by 

me,   dated    November  6,    I893,    and    the    affidavits    of  and 

,  verified ,  and 

It  appearing  therefrom  that  the  defendants,  John  Y.  McKane  and 
(insert  names  of  other  defendants)  were,  and  that  each  of  them  was, 
on  the  7th  day  of  November,  1893,  ^t  the  town  of  Gravesend,  duly 
served  with  the  said  injunction  order,  and  with  copies  of  the  papers 
on  which  the  said  order  was  granted,  and  that  the  said  defendants, 

,  and  each  of  them,  did  then   and  there  wilfully  disobey  the 

said  injunction  order,  a  lawful  mandate,  and  also  then  and  there 
wilfully  offer  resistance  to  said  injunction  order,  a  lawful  mandate. 

Now,  on  the  affidavits  and  papers  above  recited,  and  those 
referred  to  therein,  on  motion  of  Messrs.  Johnson  &  Lamb,  attorneys 
for  the  plaintiff,  it  is 

Ordered,  that  an  attachment,  as  for  criminal  contempt  for  wilful 
disobedience  of  the  said  injunction   order,   and  for  the  resistance 


66o  CRIMINAL   AND   LEGISLATIVE   CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

wilfully  offered  to  said  injunction  order,  issue  to  the  sheriff  of  the 
county  of  Kings,  against  each  and  every  of  the  said  persons,  to  wit, 
(insert  names  of  defendants),  and  that  the  said  attachment  be 
returnable  at  a  Special  Term  of  the  Supreme  Court,  to  be  held  at  the 
county  court-house,  in  the  city  of  Brooklyn,  on  the  ist  day  of 
December,  i'^93,  at  lo  o'clock  in  the  forenoon  of  that  day.  And  it 
is  further 

Ordered,  that  each  and  every  of  the  persons,  to  wit,  (insert  the 
names  of  defendants)  be  held  to  bail  on  said  attachment  in  the  sum 
of  $2,000  each.  J.   F.   BARNARD, 

Enter  in  Kings  County.  Justice  Supreme  Court. 

Order  of  Attachment. 

COURT  OF  OYER  AND  TERMINER— ix  and  for  the  City  and  County  of 
New  York. 


In  the  Matter  of 

\  loi   N.  Y.  245. 
Harvey  M.  Munsell,  etc. 


The  People  of  the  Stale  of  New  York  to  the  Sheriff  of  the  City  ajid 
County  of  Neiv  York,  greeting : 

We  command  you  that  you  forthwith  attach  and  take  the  body  of 
Harvey  M.  Munsell  before  our  justice  of  the  Court  of  Oyer  and 
Terminer,  in  and  for  the  city  and  county  of  New  York,  now  in  session, 
for  a  contempt,  to  wit :  In  having  been  guilty  of  gross  misconduct  as  a 
juror  while  duly  impanelled  and  sworn  as  a  juror  in  the  case  of  The 
People  of  the  State  of  New  York  against  Richard  Short,  lately  on 
trial  for  assault  in  the  first  degree,  in  the  saiii  Court  of  Oyer  and  Ter- 
miner, in  and  for  the  city  and  county  of  New  York,  as  appears  by 

the  atfidavits  of and ,  filed  in  the  office  of  the  clerk  of 

this  court,  and  that  you  bring  the  said  Harvey  INI.  IMunsell  before 
said  court  at  the  opening  thereof,  on  IMonday,  the  nth  day  of  I\Iay. 
1885.  to  be  flealt  with  according  to  law. 

Witness,  Hon.  Charles  H.  Van  Brunt,  one  of  the  justices  of  the 
Supreme  Court  of  the  State  of  New  York,  h.jiding  the  said  Court  of 
Oyer  and  Terminer,  this  8th  day  of  May,   18*;-. 

By  the  court.  JOHN  SPARKS. 

Clerk. 

Attachment.  (78  Hun,  155.) 

The  People  of  the  State  of  Xew  York  to  the  Sheriff  of  Kings  County, 
greeting  : 
We  command  you  that  you  attach  (insert  defendants'  names),  and 
each  and  every  one  of  them,  so  as  to  have  their  and  each  and  every 
of  their  several  bodies  before  our  Supreme  Court,  at  a  Special  Term 
thereof,  to  be  held  at  the  court-house,  in  the  city  of  Brooklyn,  on 
the  ist  day  of  December,  1893,  at  10  o'clock  in  the  forenoon  of  said 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  66l 


Art.   I.     Criminal  Contempts. 


day,  there  to  answer  us  as  well  touching-  the  contempt  which  they 
and  each  of  them,  as  alleged,  have  committed  ag-ainst  us,  as  also 
such  other  matters  as  shall  be  laid  to  their  and  each  of  their  charge. 
And  further  to  perform  and  abide  such  order  as  our  said  court 
shall  make  in  this  behalf.  And  have  you  then  and  there  this  writ, 
and  make  and  return  a  certificate  under  your  hand  of  the  manner  in 
which  you  have  executed  the  same. 

Witness,  Hon.  Joseph  F.  Barnard,  one  of  the  justices  of  our  said 
court,  at  the  court-house,  in  the  city  of  Poughkeepsie,  on  the  25th 
day  of  November,  1893.  STORM  EMANS. 

JOHNSON  &  LAMB,  c/erk. 

Attorneys  for  Relator,  Wm.   J.  Gaynor. 

By  the  court.  JOHN  COTTIER, 

Allowed.     J.  F.  BARNARD.  Clerk. 

Justice  Supreme  Court. 

Issued  by  special  order  of  the  court.  Hold  the  defendants  to  bail 
in  the  sum  of  $2,000  each.  J.    F.   BARNARD 

/    S.   C 

Order  for  Relator  to  Serve  Interrogatories. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house,  in 
the  city  of  Brooklyn,  in  the  county  of  Kings,  on  the  9th  day 
January,  1882  : 

Present : — Hon  Jasper  W.  Gilbert,  Justice. 


People  ex  ret.  John  D.  Negus, 
agst. 
Richard  S.  Roberts,  et  at. 


90  N.  Y.  402. 


Each  of  the  seventeen  last  above-named  persons  being  charged 
with  a  contempt  of  court  in  wilfully  violating  an  order  of  injunction 
granted  by  Hon.  Henry  A.  Moore,  county  judge  of  Kings  County, 
on  the  26th  day  of  December,  1881,  in  a  certain  action  then  pending 
in  the  Supreme  Court  of  the  State  of  New  York,  county  of  Kings, 
wherein  John  D.  Negus  is  plaintiff,  and  the  city  of  Brooklyn,  the 
Brooklyn  Elevated  Railroad  Company,  and  others,  are  defendants, 
and  a  writ  of  attachment  having  been  issued  against  each  of  the 
above-named  seventeen  persons  for  such  contempt,  directed  to  the 
sheriff  of  Kings  County,  and  returnable  this  day,  and  said  sheriff 
having  made  a  return  to  said  attachment  that  he  had  attached  the 
said  above-named  seventeen  persons,  and  each  of  them,  and  has 
taken  bonds  for  the  due  appearance  of  them,  and  each  of  them, 
according  to  the  exigency  of  said  attachment. 

Now,  on  filing  said  attachment  and  return,  and  the  several 
bonds  accompanying  the  same,  and  the  said  seventeen  above- 
named  persons,  and  each  of  them,  now  bemg  by  virtue  of  such 
attachment  present  before  the  court,  and  each  severally  denying- 
that  he  is  guilty  of  the  misconduct  alleged  against  him  as  aforesaid, 
and   said    Richard   S.    Roberts    appearing   by    Ward   &   Jenks,    his 


662  CRIMINAL  AND    LEGISLATIVE   CONTEMPTS. 


Art.   I.     Criminal  Contempts. 


counsel,  and  the  other  persons  appearing  by  Winchester  Britton. 
their  counsel,  and  after  reading  and  filing  the  said  attachment  and 
the  papers  on  which  the  same  was  granted  : 

Now,  on  motion  of  Herbert  G.  Hull,  the  attorney  for  the  relator 
above  named,  and  after  hearing  Ward  &  Jenks,  of  counsel  for 
Richard  S.  Roberts,  and  Winchester  Britton,  counsel  for  the  other 
persons,  in  opposition,  and  David  Barnett  and  Erastus  Cooke,  of 
counsel  for  the  relator,  in  support, 

Ordered,  that  the  relator  above  named  forthwith  file  in  the  office 
of  the  clerk  ot  this  court  interrogatories  specifying  the  facts  and 
circumstances  alleged  against  the  aforesaid  seventeen  persons,  and 
each  of  them,  and  requiring  their  and  each  of  their  answers  thereto. 
And  it  is  further 

Ordered,  that  seventeen  above-named  persons,  and  each  and 
every  of  them,  make  written  answers  to  said  interrogatories,  on 
their  oath,  within  twenty-four  hours  after  the  service  of  said  inter- 
rogatories on  them  or  their  counsel.      It  is  further 

Ordered,  that  further  proceedings  herein  stand  adjourned  until 
the  nth  day  of  January,  1882,  at  10  o'clock  in  the  forenoon,  at  a 
Special  Term  of  this  court,  to  be  held  at  the  court-house,  in  the 
city  of  Brooklyn,  county  of  Kings,  at  which  time  and  place  it  is 
hereby  ordered  and  directed  by  this  court  that  the  said  seventeen 
above-named  persons,  and  each  of  them,  attend  this  court  and 
abide  by  the  further  order  of  this  court. 

Granted,   January  9th,   1882. 

CHARLES  B.  ELLIOTT. 

Enter.     J.  W.   G.  Clerk. 

Filed  January  9th,  1882. 

Interrogatories. 

SUPREME  COURT— County  of  Kings. 


,People  ex  rel.  John  D.  Negus, 
agst. 
Richard  S.  Roberts  et  al. 


90  N.  Y.  402. 


Interrogatories  to  be  administered  to  (insert  names),  and  each  of 
them  touching  a  contempt   alleged  against  them,  and  each  of  them 


igs 


plaintiff,  and  the  city  of  Brooklyn  and  the  Brooklyn  Elevated  Com- 
pany and  others  were  defendants,  which  interrogatories  arc  hereby 
exhibiteti  pursuant  to  an  order  of  this  court  dated  January  9th,  1882. 
First  hiterroga/ory. — Were  you  from  the  ist  day  of  January,  1881, 
to  and  including  the  31st  day  of  December,  1881,  one  of  the  alder- 
men of  the  city  of  Brooklyn.'  If  yea,  in  what  ward  in  said  city 
were  you  elected  as  such  .■" 


CRIMINAL  AND    LEGISLATIVE   CONTEMPTS.  663 

Art.   I.     Criminal  Contempts. 

Were  you  during-  the  time  above  mentioned  a  member  of  the 
common  council  of  the  city  of  Brooklyn? 

Second  Interrogatory. — Were  you  served  on  the  27th  day  of  De- 
<:ember,  1881,  at  the  city  hall  m  the  city  of  Brooklyn,  and  previous 
to  a  meeting  of  the  common  council  on  that  day,  with  a  copy  of  the 
summons  and  complaint,  affidavits,  undertaking,  and  injunction  or- 
der to  show  cause  in  an  action  in  the  Supreme  Court  of  the  State  of 
New  York,  county  of  Kings,  wherein  John  D.  Negus  was  plaintiff 
and  the  city  of  Brooklyn  and  others  were  defendants,  a  copy  of 
which  IS  hereby  annexed  marked  "A.     January  9,  1882  "? 

Was  not  such  injunction  and  order  to  show  caused  served  upon 
you  by  showing  the  origmal  mjunction  and  order  to  show  cause  in 
said  action,  bearing  the  signature,  or  purporting  to  bear  the  signa- 
ture thereon,  of  Henry  A.  Moore,  County  Judge  of  Kings  County, 
and  at  the  time  and  place  was  there  not  delivered  to  and  left  with 
you  personally  a  copy,  or  what  purported  to  be  a  copy  thereof,  to- 
gether with  a  printed  copy  of  the  summons  and  complaint  in  said 
action  ? 

When  was  said  service  made? 

Answer  fully. 

7'hird  l7iter rogatory. — Was  not  the  object  of  the  adjournment  of 
said  meeting  held  December  27th,  188 1.  and  after  the  service  of  the 
injunction  order  made  by  Hon.  Henry  A.  Moore,  County  Judge  of 
Kings  County,  to  December  28th,  1881,  for  the  purpose  of  passing 
or  adopting  the  resolution  which  was  the  subject  of  the  injunction 
order  served  on  you  ? 

Fourth  Interrogatory. — Were  not  the  adjournments  had  after  the 
service  of  the  injunction  for  the  purpcjse  of  adopting  the  aforesaid 
resolution  ? 

FiftJi  Interrogatory.— YTxd  you  attend  a  meeting  or  session  of  the 
common  council  of  the  city  of  Brooklyn  on  the  31st  day  of  Decem- 
ber,  1 88 1  ?     If  yea,  at  what  time  was  said  meeting  or  session   held? 

Sixth  Interrogatory. — Was  a  motion  then  made  (if  yea,  by  whom) 
to  take  from  the  table  a  communication  from  his  honor,  the  mayor, 
presented  December  9th.  1881,  disapproving  the  resolution  adopted 
in  common  council  December  6th,  1881  ? 

Was  or  was  not  such  a  communication  a  veto  or  disapproval  by 
the  mayor  of  the  resolution  named  in  the  plaintiffs  complaint  in  the 
action  hereinbefore  named? 

If  you  answer  nay,  or  say  you  do  not  know,  or  do  not  remember, 
then  produce  and  annex  to  your  answer  to  this  interrogatory  a  copy 
of  tlie  resolution  adopted  December  6,  1881,  to  which  said  communi- 
cation  referred. 

Seventh  Interrogatory. — Was  a  motion  then  made  to  adopt  the 
.said  resolutions  notwithstanding  the  objection  of  his  honor,  the 
mayor?  Who  made  such  motion?  Were  the  resolutions  mentioned 
in  the  plaintiff's  complaint  and  injunction  order  adopted  by  a  two- 
thirds  vote?  Did  you  vote  in  the  affirmative  on  said  motion?  Who 
else  voted  in  the  affirmative  on  said  motion  ?  How  many  persons 
s,o  voted  ? 

Eighth  Interrogatory. — Was  or  was  not  a  motion  then  made  to  re- 


664  CRIMINAL   AND    LEGISLATIVE    CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

consider  the  vote  jubt  taken,  and  was  or  was  not  such  motion  lost.? 
Did  you  vote  in  the  negative  on  said  motion  to  reconsider  the  vote 
taken  on  the  adoption  of  said  resolution  ?  Who  else  voted  in  the 
negative?  HERBERT  G.    HULL, 

Attorney  for  Relator. 

Answer  to  Interrogatories. 

SUPREME  COURT— County  of  Kings. 


The  People  ex  re/.  John  D.  Negus, 
Richard  S.  Roberts  et  at. 


90  N.  Y.  402. 


The  defendants  herein  named,  except  Richard  S.  Roberts,  sever- 
ally claiming  and  protesting  that  the  facts  hereby  declared  by  the 
answer  to  the  interrogatories  propounded  to  them  under  order  of 
this  court  made  and  entered  on  the  9th  day  of  January,  1882,  con- 
stitute no  contempt  of  court,  each  for  himself  answers  said  interrog- 
atories as  follows  : 

To  the  First  Interrogatory.  — I  was  on  the  first  day  of  January,  1881, 
and  to  and  including  the  31st  day  of  December,  1881,  one  of  the 
aldermen  of  the  city  of  Brooklyn  ;  and  I,  the  said  (insert  name),  was 
elected  as  such  in  the  ward,  and  (msert  names  and 

wards  in  which  elected,  etc.). 

I  was  during  the  time  mentioned  in  said  interrogatory  a  member 
of  the  Common  Council  of  the  city  of  Brooklyn. 

To  the  Second  Interrogatory. — I  was  so  served  and  in  the  manner 
specified  in  the  second  interrogatory. 

To  the  Third  Interrogatory. — It  was  not.  When  such  adjourn- 
ment was  made  on  December  27th,  1881,  I  had  formed  no  purpose 
upon  the  subject.  I  had  not  then  determined  how  I  should  vote  if 
such  a  resolution  should  be,  at  said  adjourned  meeting,  put  upon  its 
passage.  Nor  did  I  know  that  it  would  be  then  put  upon  its 
passage. 

To  the  Fourth  Interrogatory. — Not  to  my  knowledge. 

To  tJie  Fifth  Interrogatory. — I  did  attend  said  meeting,  and  it  was 
held  at  10  o'clock  in  the  forenoon  of  said  31st  day  of  December, 
1881.  ^ 

To  the  first  paragraph  0/  the  Sixth  Interrogatory. — There  was  a 
motion  made  to  take  from  the  table  a  communication  from  the 
mayor,  disapproving  of  such  a  resolution,  by  William  Dvvyer. 

To  the  second  paragraph  0/  said  Sixth  Interrogatory. — Such  com- 
munication was  a  disapproval  by  the  mayor  of  such  resolution. 

To  the  first  paragraph  0/  the  Seventh  Interrogatory. — There  was  a 
motion  made  to  adopt  said  resolution  by  William  Dwyer. 

To  the  second  paragraph  of  the  Seventh. — Said  resolution  received 
a  two-thirds  vote,  and  I  voted  in  the  affirmative  on  its  adoption,  and 
each  of  the  persons  named  herewith  voted  in  the  affirmative,  seven- 
teen in  all. 

To  the  Eighth  Interrogatory. — Such  motion  was  made  and  was  lost. 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  665 


Art.   I.     Criminal  Contempts. 


I  voted  in  the  negative   on  said  motion,   and  each   of  the   persons 
named  as  defendants  herein  so  voted. 

(Signed  by  the  seventeen  defendants.) 
(Add  verificatio7i  by  seve?iiee7i  de/enda?ils). 

Order  Adjudging  in  Contempt. 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  court-house  in 
the  city  of  Brooklyn,  county  of  Kings,  on  the  15th  day  of 
December,  1893  : 

Present  : — Hon.  Joseph  F.  Barnard,  Justice. 


The  People  ex  rel.  William  J.  Gaynor, 
agst. 
John  Y.  McKane  et  al. 


78  Hun,  155. 


A  writ  of  attachment  having  heretofore  issued  out  of  this  court 
against  the  above  John  Y.  McKane  and  others,  charging  him  and 
them  and  each  of  them  with  a  criminal  contempt  of  court  in  wilfully 
disobeying  an  order  of  injunction  granted  by  Hon.  Joseph  F,  Bar- 
nard, a  justice  of  the  Supreme  Court,  on  November  6th,  1893,  in  a 
certain  action  then  pending  in  the  Supreme  Court  of  the  State  of 
New  York,  wherein  William  J.  Gaynor  was  plaintiff  and  the  said 
John  Y.  McKane  and  others  defendants,  and  in  wilfully  having 
offered  resistance  to  the  said  injunction  order,  which  attachment 
was  directed  to  the  sheriff  of  the  county  of  Kings,  and  the  said 
sheriff  having  made  a  return  to  the  said  attachment  that  he  had  at- 
tached the  body  of  the  said  John  Y.  McKane  and  had  taken  z. 
bond  for  his  due  appearance  according  to  the  exigency  of  the  said 
attachment,  and  the  said  John  Y.  McKane  having  appeared  person- 
ally before  said  court, 

Now,  on  the  affidavits  and  other  papers  upon  which  the  order  for 
said  attachment  was  made,  to  wit  (insert  names  of  papers),  and  on 
reading  and  filing  the  following  affidavits  in   opposition  thereto,  to- 

wit  : and and  on    reading  and  filing 

the  following  affidavits  in  rebuttal,  viz. and ^ 

and  upon  the  examination  of and  of ni  open 

court,  and   after  hearing in   support  of  said  motion, 

and in    opposition   thereto,  and  due  deliberation   having 

been  had,  it  is,  on  motion  of  Messrs.  Johnson  &  Lamb,  attorneys  for 
the  relator,  now  here 

Ordered,  considered,  and  adjudged  that  the  said  John  Y.  !\IcKane, 
has  been  and  is  guilty  of  the  misconduct  and  contempt  alleged 
against  him,  and  has  been  and  is  guilty  of  the  wilful  disobedience 
to  the  lawful  mandate  of  this  court,  to  wit,  wilfully  violating  the 
injunction  order  granted  by  Hon.  Joseph  F.  Barnard,  justice  of  the 
Supreme  Court,  on  November  6th,  1893,  in  the  aforesaid  action; 
and  has  been  and  is  guilty  of  resistance  wilfully  offered  to  the  said 
lawful  mandate  of  this  court  ;   and  it  is  further 

Ordered    and  adjudged,  that   the  saiti   John  Y.    ]McKane     be    im- 


666  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

prisoned  in  the  common  jail  of  the  county  of  Kings  for   a  period  of 
thirty  days.     And  it  is  further 

Ordered  and  adjudged  that  a  fine  of  $250  be  and  the  same  is 
hereby  imposed  upon  him  for  his  said  misconduct,  and  that  he  stand 
committed  to  the  common  jail  of  the  said  county  of  Kings  there  to 
remain  charged  upon  said  contempt  until  his  said  fine  imposed  as 
aforesaid  shall  be  fully  paid,  not  exceeding  30  days,  unless  he  shall 
be  sooner  discharged  by  the  further  order  of  this  court ;  and  that  a 
warrant  issue  to  carry  this  order  into  effect,  and  that  such  fine  be 
paid  to  the  clerk  of  this  court  and  be  disposed  of  according   to  law. 

Granted,  December  15,  1893. 

Enter. 
J.  F.  BARNARD,  JOHN  COTTIER, 

Justice  Supretfie  Court.  Clerk. 

Order  Adjudging  Person  in  Contempt. 

At  a  Court  of  Oyer  and  Terminer  in  and  for  the  city  and  county  of 
New  York,  at  the  county  court-house,  in  said  city,  on  the  31st 
day  of  March,  1890: 

Present  : — Hon.  George  C.  Barrett,  Justice  0/  the  Supreme  Court, 
assigned  to  and  holding  said  Court  of  Oyer  and  Terminer. 


The  People  of  the   State   of  New  York, 

agst. 

James  A.   Flack  et  al.,  in  the  Matter  of  Con- 
tempt of  Dilworth  Choate. 


56  Hun,  351, 
121  N.  Y.  678. 


Whereas,  on  the  22d  day  of  March,  1890,  James  A.  Flack  and 
his  co-defendants  were  on  trial  at  a  Court  of  Oyer  and  Terminer,  then 
being  duly  held  in  and  for  the  city  and  county  of  New  York  at  the 
county  court-house,  in  the  said  city,  for  the  crime  of  conspiracy, 
the  Hon.  George  C.  Barrett,  justice  of  the  Supreme  Court  of  the 
State  of  New  York,  assigned  to,  and  holding  said  Court  of  Oyer  and 
Terminer,  presiding  ;  (insert  statements  of  facts). 

Whereas,  on  the  26th  day  of  March,  1890,  an  order  was  made  by 
this  court  that  said  Dilworth  Choate  show  cause  why  he  should  not 
be  punished  for  a  criminal  contempt  of  court,  being  in  relation  to 
his  conduct  in  the  premises  ;  and  the  said  order  to  show  cause  hav- 
ing come  on  to  be  heard  on  the  28th  day  of  March,  1890,  before 
said  court,  and  the  said  Dilworth  Choate  having  in  open  court 
acknowledged  due  personal  service  upon  him  of  said  order,  and 
having  appeared  and  been  heard  by  counsel. 

Now,  therefore,  on  reading  and  filing  the  said  order  to  show 
cause,  and  the  application  to  this  court  by  John  R.  Fellows,  district 

attorney,  and  of ,  counsel  for  the  defendants  James  A.  Flack 

and  others,  and  the  affidavits  of ,  each  and  all  verified  on  the 

25th  day  of  March,  1890,  in  support  of  said  order,  and  the  affidavit 
of  Dilworth  Choate,  verified  on  the  28th  day  of  March.  1890;  and 
after  hearing  Frederic  W.  Coudert,  Esq.,  of  counsel  for  said  Dilworth 


CRIMINAL   AND   LEGISLATIVE   CONTEMPTS.  ^dj 

Art.   ].     Criminal  Contempts. 

Choate  in   his    behalf,  and  John  R.  Fellows,  district  attorney,  in  aid 
of  the  court  ;  and  after  due  consideration,  it  is 

Ordered  and  adjudged  by  this  court,  that  the  said  Dilworth  Choate 
was,  and  is  guilty  of  the  criminal  contempt  of  court  in  that  he,  being 
a  newspaper  reporter,  surreptitiously  and  contemptuously  secreted 
and  concealed  himself  in  the  private  room  prepared  for  and  in  which 
the  said  jury  on  retirement  were  to  hold  their  deliberations  for  the 
purpose,  and  with  the  intent  of  listening  to,  and  taking  notes  of  the 
conversation  and  deliberations  of  the  said  jury,  and  of  publishing 
the  same  thereafter  in  one  of  the  daily  newspapers  in  the  city  of 
New  York  ;  that  after  the  entrance  of  the  jury  in  said  private  room 
and  while  the  doors  and  approaches  thereto  were  guarded  by  the 
said  officers  of  the  court,  and  while  the  said  jury  were  consulting 
and  deliberating  upon  and  in  relation  to  their  verdict,  and  during 
the  sitting  and  while  said  court  was  in  session,  the  said  Dilworth 
Choate  yet  remained  so  secreted  and  concealed,  and  in  furtherance 
of,  and  in  execution  of  the  purpose  and  intent  aforesaid,  listened  to 
the  conversation  and  deliberation  of  the  jury,  and  made  written 
notes  thereof,  and  on  being  discovered  by  the  said  jury  there  with 
paper  and  pencil  in  hand  taking  notes,  and  being  then  and  there 
charged  by  the  members  of  the  said  jury  with  being  a  newspaper 
reporter,  used  the  following  expression,  "We  are  everywhere, "  all 
of  which  disorderly  and  insolent  behavior  of  said  Dilworth  Choate, 
was  committed  by  him  during  the  said  day  and  while  said  court 
was  in  session  and  in  its  immediate  view  and  presence,  and  directly 
tending  to  interfere  with  its  proceedings,  and  to  impair  the  respect 
due  its  authority ;   and  it  is  further 

Ordered  and  adjudged,  that  for  the  said  criminal  contempt,  said 
Dilworth  Choate  be  fined  the  sum  of  $250  and  be  imprisoned  in 
close  custody  in  the  common  jail  of  the  county  of  New  York  for 
30  days,  and  thereafter,  in  case  of  default  in  the  payment  of  the 
aforesaid  fine  until  said  fine  is  fully  paid,  or  a  period  of  30  days 
after  the  expiration  of  the  period  of  30  days  above  mentioned  shall 
have  expired. 

Enter.  GEORGE  E.   BARRETT, 

Justice  Supreme  Court. 

Assigned  to  and  holding  the  Court  of  Oyer  and  Terminer. 

Order  Convicting  Respondents  of  Contempt. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  court-house, 
in  the  city  of  Brooklyn,  in  the  county  of  Kings,  on  the  14th  day 
of  January,   1882  : 

Present  : — Hon.  Jasper  W.  Gilbert,  Justice. 


The  People  ex  rel.  John  D.  Negus, 

agst. 

William  Dwyer  et  at. 


90  N.  Y.  402. 


A  writ  of  attachment  having  heretofore  issued  out  of  this  court 


668  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 

Art.   I.     Criminal  Contempts. 

against  the  said  above-named  persons  and  others,  charging  him  and 
them  and  each  of  them  with  a  contempt  of  court,  in  wilfully  violat- 
ing an  order  of  injunction  granted  by  Hon.  Henry  A.  Moore,  county 
judge  of  King's  County,  on  the  26th  day  of  December,  1881,  in  a 
certain  action  then  pending  in  the  Supreme  Court  of  the  State  of 
New  York,  county  of  Kings,  wherein  John  D.  Negus  is  plaintiff, 
and  the  City  of  Brooklyn  and  others  are  defendants,  which  attach- 
ment was  directed  to  the  sheriff  of  the  county  of  Kings  and  return- 
able on  the  9th  day  of  January,  1882,  and  the  said  sheriff  having 
made  a  return  to  the  said  attachment  that  he  had  attached  the  body 
of  the  said  above-named  William  Dwyer,  and  has  taken  a  bond  for 
the  due  appearance  of  him  according  to  the  exigency  of  said  attach- 
ment, and  the  said  above  named  William  Dwyer  having  appeared  per- 
sonally before  the  said  court.  And  interrogatories  specifying  facts 
and  circumstances  alleged  against  him  having,  by  order  of  the 
court,  been  filed,  and  a  copy  of  the  same  having  been  served  on  his 
counsel  pursuant  to  said  order,  and  he  having  been  required  to 
answer  said  interrogatories,  and  having  answered  the  same,  and  the 
respondent,  Richard  S.  Roberts,  being  examined  in  open  court,  and 
after  reading  the  affidavits  of  Theodore  D.  Dimon,  (insert  other 
affiants)  and  a  copy  of  the  minutes  of  the  meeting  of  the  common 
council  held  on  December  31st,  1881,  and  after  an  examination  of 
Robert  Black  in  open  court,  and  filing  the  testimony  so  taken  of 
said  Roberts  and  Black,  and  the  proceedings  having  been  duly 
adjourned  to  this  day.  .And  after  hearing  Erastus  Cooke,  David 
Barnett,  and  Hubert  G.  Hull,  Esqs.,  in  support  of  said  motion,  and 
Winchester  Britton,  Esq.,  and  Ward  &  Jenks,  counsel  for  respond- 
ents, 

Now,  on   motion   of  H.  G.    Hull,  attorney  for  relator,    it   is 

No  where  considered  and  adjudged  that  the  said  William  Dwyer 
has  been  and  is  guilty  of  the  misconduct  and  contempt  alleged  against 
him,  and  has  been  and  is  guilty  of  the  wilful  disobedience  to  the  law- 
ful mandate  of  this  court,  to  wit,  in  wilfully  violating  the  injunction 
order  granted  by  Hon.  Henry  A.  Moore,  county  judge  of  Kings 
County,  on  the  26th  day  of  December,  1881,  in  the  aforesaid  action. 
And  it  is  further 

Ordered  and  adjudged  that  the  said  William  Dwyer  for  his  said 
misconduct  be  imprisoned  in  the  common  jail  of  the  county  of 
Kings  for  a  period  of  30  days.      And  it  is  further 

Ordered  and  adjudged  that  a  fine  of  $250  be  and  the  same  is  here- 
by imposed  upon  him  for  his  said  misconduct,  and  that  he  stand 
committed  to  the  common  jail  of  the  said  county  of  Kings,  there  to 
rcniam  charged  upon  said  contempt  until  his  said  fine  imposed  as 
aforesaid  shall  be  fully  paid,  not  exceeding  30  days,  unless  he  shall 
be  sooner  discharged  by  an  order  of  the  court,  and  that  a  warrant 
issue  to  carry  this  order  into  effect,  and  that  such  fine  be  paid  to  the 
clerk  of  this  court  to  be  disposed  of  according  to  law. 

A  copy.  CHAS.    B.   ELLIOT. 

Clerk. 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  66g 

Art.   I.     Criminal  Contempts. 


Precedent  for  Order  for  Commitment. 

At  a  Court  of  General  Sessions  of  the  Peace,  holden  in   and    for  the 

city  and  county  of  New  York,  etc.,  April  30,    1861  : 
Present : — John  T.    Hoffman,   Recorder. 

1 

In  the  Matter  of  Andrew  J.  Hackley.  \ 

. -J 

The  grand  jury  heretofore  in  due  manner  selected,  drawn,  sum- 
moned, and  sworn  to  serve  as  grand  jurors  in  the  Court  of  General 
Sessions  of  the  Peace  in  and  for  the  city  and  county  of  New  York, 
come  into  court  and  make  complaint,  by  and  through  their  foreman, 
theretofore  duly  appointed  and  sworn,  that  Andrew  J.  Hackley,  after 
being  duly  summoned  and  sworn,  as  prescribed  bylaw,  as  a  witness 
in  a  certain  matter  and  complaint  pending  before  such  grand  jury, 
whereof  they  had  cognizance,  against  certain  aldermen  and  mem- 
bers of  the  common  council  of  the  city  of  New  York  for  feloniously 
receiving  a  gift  of  money,  under  an  agreement  that  their  votes  should 
be  influenced  thereby  in  a  matter  then  pending  before  said  alder- 
men and  members  of  the  common  council  in  their  official  capacity, 
did  then  and  there  refuse  to  answer  the  following  legal  and  proper 
interrogatory  propounded  to  him,  the  said  Andrew  J.  Hackley,  to 
wit  :  "  What  did  you  do  with  the  pile  of  bills  received  from  Thomas 
Hope,  and  which  he  told  you  amounted  to  $50,000.?  " 

And  the  said  Andrew  J.  Hackley  then  and  there,  instead  of  an- 
swering the  said  interrogatory,  stated  as  follows,  to  wit:  "Any 
answer  which  I  could  give  to  that  question  would  disgrace  me,  and 
would  have  a  tendency  to  accuse  me  of  a  crime.  I,  therefore,  de- 
mur to  the  question,  referring  to  the  ancient  common-law  rule,  that 
no  man  is  held  to  accuse  himself,  and  to  the  sixth  section  of  the 
first  article  of  the  constitution  of  this  State." 

And  the  court  having  then  and  there  decided  that  the  said  inter- 
rogatory is  a  legal  and  proper  one,  and  that  the  reasons  given  for 
not  answering  the  same  are  invalid  and  insufficient  ;  and  now  or- 
dering the  said  Andrew  J.  Hackley  to  answer.the  said  interrogatory, 
and  he,  the  said  Andrew  J.  Hackley,  still  contumaciously  and  un- 
lawfully refusing  to  answer  the  said  interrogatory,  the  court  doth 
hereby'adjudge "the  said  Andrew  J.  Hackley,  by  reason  of  the  pre- 
mises aforesaid,  guilty  of  criminal  contempt  of  court ;  and  doth  fur- 
ther order  and  adjudge  that  the  said  Andrew  J.  Hackley,  for  the 
criminal  contempt  aforesaid,  whereof  he  is  convicted,  be  imprisoned 
in  the  jail  of  the  county  of  New  York  for  the  term  of  thirty  days. 


670  CRIMINAL   AND    LEGISLATIVE   CONTEMPTS. 


Art.  I.     Criminal  Contempts. 


Order  for  Commitment. 

At  a  Court  of  Oyer  and  Terminer,  held  in  and  for  the  county  of  Thomp- 
kins,  at  the  court-house  in  the  city  of  Ithaca,  on  the22d  day  of 
March,    1894  : 

Present  : — Hon.  Gerrit  A.  Forbes,  Justice  of  the  Supreme  Court. 

1 

In  the  Matter  of  Frederick  L.  Taylor.  [■  143  N.  Y.  219. 

J 


The  grand  jury  heretofore  in  due  form  selected,  drawn,  summoned 
and  sworn  to  serve  as  grand  jurors  in  the  Court  of  Oyer  and  Terminer 
in  and  for  the  county  of  Tompkins,  come  into  court  and  make  com- 
plaint by  and  through  their  foreman  herein  duly  appomted  and 
sworn,  and  by  and  through  J.  H.  Jennings,  district  attorney  of  said 
county  of  Tompkins,  that  Frederick  L.  Taylor,  after  being  duly 
summoned  and  sworn  as  prescribed  bylaw,  as  a  witness  in  a  cer- 
tain matter  and  complaint  pending  before  said  grand  jury,  whereof 
they  had  cognizance  against  certain  person  or  persons  for  unlawfully, 
feloniously  causing  the  death  of  one  Henrietta  Jackson,  said  death 
having  been  produced  by  the  use  and  administration  of  chlorine,  or 
certain  other  foul,  poisonous,  noxious  gases  generated  in  two  cer- 
tain jugs,  which  said  jugs  were  then  and  there  before  said  grandjury 
duly  procured,  did  then  and  there  refuse  to  answer  the  following 
legal  and  proper  interrogations  propounded  to  him,  the  said  Fred- 
erick L.  Taylor,  as  follows,  to  wit  : 

(Insert  questions  which  witness  refused  to  answer. ) 

And  the  said  Frederick  L.  Taylor  then  and  there  instead  of  an- 
swering the  said  interrogatories  put  to  him  as  aforesaid  stated  and 
answered  each  of  said  interrogatories  as  follows,  to-wit  :  "I  throw 
myself  upon  my  privilege." 

And  the  court  having  then  and  there  decided  that  each  and  every 
of  said  interrogatories  was  a  proper  and  legal  one,  and  that  the  rea- 
son given  by  said  Frederick  L.  Taylor  in  not  answering  the  same 
was  invalid  and  insufficient,  and  now  ordering  the  said  Frederick  L. 
Taylor  to  answer  the  said  interrogatories,  and  he,  the  said  Fred- 
erick L.  Taylor,  still  contumaciously  and  unlawfully  refusing  to  an- 
swer the  said  interrogatories  or  any  of  them,  the  court  doth  hereby 
adjudge  the  said  Frederick  L.  Taylor  by  reason  of  the  premises 
aforesaid  guilty  of  criminal  contempt  of  court,  and  doth  further  order 
and  adjudge  that  the  said  Frederick  L.  Taylor  for  the  criminal  con- 
tempt aforesaid,  whereof  he  is  convicted,  be  imprisoned  by  the  sher- 
iff of  the  county  of  Tompkins  in  the  jail  of  said  county  of  Tompkins 
until  he   be  purged  of  his  contempt,  not  exceeding  thirty  (30)  days. 

Witnessed  and  approved.  GERRIT  A.  FORBES, 

Justice  Supreme  Court. 

Attachment  for  Contempt.     (56  Hun,  351,  121  N.  Y.  678.) 

The  People  of  the  State  of  New  Fork  to  the  Sheriff  of  the  City  and 
County  of  New  York,  frreetinf;-  : 
Whereas,  On  the  22d  day  of  March,  1890,  James  A.  Flack  and  his 


CRIMINAL   AND    LEGISLATIVE   CONTEMPTS.  6/1 


Art.   2.     Legislative  Contempts. 


co-defendants  were  on  trial  at  a  Court  of  Oyer  and  Terminer  then  be- 
ing duly  held  in  and  for  the  city  and  county  of  New  York  at  the 
county  court-house  in  said  city  for  the  crime  of  conspiracy,  Hon. 
George  C.  Barrett,  justice  of  the  Supreme  Court  for  the  State  of  New 
York,  assigned  to  and  holding  said  Court  of  Oyer  and  Terminer,  pre- 
siding.     (Recite  facts  upon  which  contempt  is  based.) 

All  of  which  disorderly,  contemptuous,  and  msolent  behavior  of  the 
said  Dilworth  Choate  was  committed  by  him  during  the  sitting  of 
and  while  the  said  court  was  in  session  and  in  its  immediate  view 
and  presence,  and  directly  tended  to  interrupt  its  proceedings  and 
to  impair  the  respect  due  its  authority,  and  it  having  been  further 
ordered  and  adjudged  that  for  the  said  criminal  contempt  of  court 
said  Dilworth  Choate  be  fined  $250  and  be  imprisoned  in  close  cus- 
tody in  the  common  jail  of  the  county  of  New  York  for  thirty  days, 
and  thereafter  in  case  of  default  in  the  payment  of  the  aforesaid  fine 
until  said  fine  be  fully  paid,  or  a  period  of  thirty  days  after  the  ex- 
piration of  the  period  of  thirty  days  above  mentioned  shall  have  ex- 
pired. 

And  therefor  we  command  you  that  you  take  the  body  of  the  said 
Dilworth  Choate  and  safely  keep  him  in  your  close  custody  in  the 
common  jail  of  the  county  of  New  York  for  thirty  days,  and  there- 
after in  case  of  default  in  the  payment  of  the  aforesaid  fine  until  said 
fine  be  fully  paid,  or  a  period  of  thirty  days  after  the  expiration  of 
the  period  of  thirty  days  above  mentioned  shall  have  expired. 

Witness,  Hon.  George  C.  Barrett,  justice  of  the  Supreme  Court,  as- 
signed to  and  holding  the  Court  of  Oyer  and  Terminer  for  the  city  and 
county  of  New  York  at  the  county  court-house  in  said  city  on  the 
31st  day  of  March,    1890. 

By  the  court.  JOHN  SPARKS, 

•      Clerk. 

ARTICLE  II. 

Legislative  Contempts.     Legislative  Law,  §  4. 

The  matter  of  legislative  contempts,  while  not  strictly  within 
the  scope  of  a  work  on  special  proceedings,  seems  germane  to  the 
subject,  since  the  right  of  the  legislature  to  punish  for  contempt 
very  frequently  comes  before  the  courts  for  examination.  In  the 
examinations  of  questions  of  contempt,  legi.slative  as  well  as  judi- 
cial, the  practitioner  will  look  for  a  collation  of  the  authorities 
under  the  statute  applicable  to  punishment  therefor.  The  statute, 
therefore,  with  leading  decisions  on  the  subject  here  is  given. 

ij  4.  Legislative  law.     Contempts  of  either  house. 
Each  house  may  punish  by  imprisonment  not  extending  beyond  the  same  session 
of  the  legislature,  as  for  a  contempt,  for  the  followmg  offences  only ; 

1.  Arresting  a  member  or  officer  of  either  house  in  violation  of  his  privilege  from 
arrest  : 

2.  Disorderly  conduct  of  its  members,  officers,  or  others  in  the  immediate  view  and 
presence  of  the  house,  tending  to  interrupt  its  proceedings  ; 


6/2  CRIMINAL  AND    LEGISLATIVE   CONTEMPTS. 

Art.   2.     Legislative  Contempts. 

3.  The  publication  of  a  false  and  malicious  report  of  its  proceedings,  or  of  the  con- 
duct of  a  member  in  his  legislative  capacity  ; 

4.  Giving  or  offering  a  bribe  to  a  member,  or  attempting,  by  menace  or  other  cor- 
rupt means,  directly  or  indirectly,  to  influence  a  member  in  giving  or  withholding 
his  vote,  or  m  not  attending  meetings  of  the  house  of  which  he  is  a  member  ; 

5.  Neglect  to  attend  or  to  be  examined  as  a  witness  before  the  house,  when  duly 
required  to  give  testimony  in  a  legislative  proceeding. 

The  matter  of  legislative  contempts  is  very  thoroughly  consid- 
ered and  fully  discussed  in  opinion  of  Rapallo,  J.,  concurred  in  by 
the  entire  court,  in  People  ex  rel.  McDonalds.  Keeler,  99  N.  Y.  480, 
where  the  question  arose  upon  habeas  corptis  as  to  the  power  of 
the  legislature  to  punish  for  contempt.  It  is  said  that  the  five 
enumerated  offences  are  the  only  ones  which  eitheir  house  is  au- 
thorized to  punish  as  contempts,  and  that  they  take  the  place  of 
the  numerous  offences  and  acts  which  were  treated  by  Parliament 
as  contempts.  Reference  is  made  to  Kilbonrn  v.  TJwnipson,  103 
U.  S.  168,  where  the  plaintiff  had  been  convicted  of  contempt, 
and  sentenced  by  the  House  of  Representatives  to  imprisonment. 
There  it  was  held  that  the  right  of  the  House  of  Representatives 
to  punish  a  citizen  for  a  contempt  was  derived  solely  from  the 
Federal  Constitution,  and  that  such  rights  as  were  not  conferred  by 
that  instrument,  were  reserved  to  the  States  respectively,  or  to  the 
people,  and  that  while  the  House  had  power  to  punish  contempt 
by  fine  and  imprisonment  in  certain  cases,  it  had  no  general  juris- 
diction  on  the  subject. 

It  is  further  held  that  throughout  the  Union  the  practice 
of  legislative  bodies,  and  in  this  State  the  statutes  existing  at 
the  time  the  Constitution  was  adopted,  afford  strong  arguments 
in  favor  of  the  recognition  of  the  right  of  either  House  to  com- 
pel the  attendance  of  witnesses  for  legislative  purposes,  as  one 
which  has  been  generally  conceded  to  be  an  appropriate  adjunct 
to  the  power  of  legislation,  and  one  which  the  State  legislature 
has  authority  to  regulate  and  enforce  by  statute.  Kilbouni  v. 
Thoiiipsoii  is  distinguished  99  N.  Y.  476.  That  case  is  cited  in 
Re  Chap  man,  166  U.  S.  661,  where  it  is  held  that  the  refusal  to 
answer  pertinent  questions  in  the  matter  of  inquiry  within  the 
jurisdiction  of  the  senate   constitutes  a  contempt  of   that  body. 

The  general  rule  is  further  laid  down  that  indictable  statutory 
offences  may  be  punished  as  such,  while  the  offenders  may  like- 
wise be  subjected  to  punishment  for  the  same  acts  as  contempts. 
In  Pctple  ex  rel.  Sabohl  v.  Webb,    5    Supp.  855,  23  St.  Rep.  324. 


CRIMINAL  AND    LEGISLATIVE   CONTEMPTS.  673 


Art.   2.     Legislative  Contempts. 


it  was  held  that  the  legislature  of  this  State  does  not  possess  the 
common-law  power  to  punish  for  contempt  which  is  exercised  by 
English  Parliament  ;  it  has  only  such  powers  in  that  respect  as 
are  expressly  conferred  upon  it.  And  where  a  committee  was  ap- 
pointed to  take  evidence  and  report  to  the  House  "  such  recom- 
mendations as  in  its  judgment  the  public  interest  may  require, 
and  for  the  purpose  of  remedial  legislation,"  it  was  held  that  the 
knowledge  acquired  by  the  investigations  could  not  be  used  for 
the  purpose  of  legislation  within  the  meaning  of  the  statute  re- 
lating to  contempt,  and  that  the  legislature  had  no  power  to  pun- 
ish the  witness  for  contempt  in  refusing  to  testify  before  the  com- 
mittee. The  case  of  People  v.  Sharp,  107  N.  Y.  427,  considers 
very  fully  the  subject  of  contempt  of  legislative  committees,  and 
holds  that  notwithstanding  the  vesting  of  the  judicial  power  in 
the  courts,  certain  powers,  in  their  nature  judicial,  may  be  dele- 
gated to  a  committee,  with  power  to  take  testimony,  summon 
witnesses,  and  a  refusal  to  appear  and  testify  before  such  commit- 
tee in  obedience  to  a  subpoena  is  a  contempt. 
43 


CHAPTER  XVI. 

PROCEEDINGS  TO  COLLECT  A  FINE. 
Sections  of  the  Code  and  Where    Found  in  this  Chapter, 

SEC.  ART.  PAGE. 


2293.  Clerk  to  make  schedule  of  fines  imposed 

2294.  Warrant  to  be  issued  by  him 

2295.  Id.;  when  delinquent  resides  in  another  county . 

2296.  Execution  of  warrant 

2297.  Return  thereof 

2298.  Proceedings  if  fine  not  collected 

2299.  Who  to  be  included  in  schedule 

2300.  Liability  of  sheriff 

2301 .  Application  of  this  title 


674 
674 
674 
674 

67s 
675 

675 
67s 
675 

§  2293.  Clerk  to  make  schedule  of  fines  imposed. 

Where  a  fine  has  been  imposed  by  a  court  of  record,  upon  a  grand  or  trial  juror,  or 
upon  any  ofiicer  or  other  person  without  being  accompanied  with  an  order  for  the 
immediate  commitment  of  the  person  so  fined,  until  the  fine  is  paid,  the  clerk  of  the 
court,  immediately  after  the  close  of  the  term  at  which  the  fine  was  imposed,  must 
prepare  a  schedule,  containing,  in  separate  columns,  the  following  matters  : 

1.  The  name  of  each  person  fined. 

2.  His  place  of  residence,  where  it  appears,  from  the  papers  on  file  or  before  the 
court,  to  be  within  the  county. 

3.  The  amount  of  the  fine  imposed  upon  him. 

4.  The  cause  for  which  the  fine  was  imposed. 

The  clerk  must  subjoin  to  the  schedule  a  certificate,  to  the  effect,  that  it  contains  a 
true  abstract  of  the  orders  imposing  fines,  and  must  annex  it  to  the  warrant  specified 
in  the  next  section. 

2  R.  S.  484,  §§  22,  24  (2  Edm.  506)  ;  Roseboom  v.  Van   Vechten,  5  Denio,  414. 

§  2294.  Warrant  to  be  issued  by  him. 

The  clerk  must  immediately  issue  a  warrant,  under  the  seal  of  the  court,  directed  to 
the  sheriff  of  the  county,  and  commanding  him  to  collect  from  each  of  the  persons, 
named  in  the  schedule  annexed  to  the  warrant,  the  sum  therein  set  opposite  that  per- 
son's name  ;  and  to  pay  over  the  sum  collected,  to  the  treasurer  of  the  county.  The 
warrant  is  the  process  of  the  court,  by  which  the  fines  were  im])osed. 

Id.  §  23. 

§  2295.  Id. ;  when  delinquent  resides  in  another  county. 

If  a  delinquent  resides  in  another  county,  a  separate  warrant,  for  the  collection  of 
the  fine  imposed  upon  him,  with  an  appropriate  schedule  annexed  thereto,  must  be 
issued,  in  like  manner,  to  the  sheriff  of  the  county  where  he  resides. 

8  2296.  Execution  of  warrant. 

The  sheriff,  to  whom  a  warrant  is  issued,  must  collect  each  fine  out  of  the  personal 
property  of  the  person  fined,  as  prescribed  in  chapter  thirteen  of  this  act,  for  the 
collection,  by  levy  upon  and  sale  of  personal  property,  of  an  execution  issued  out  of 
a  court  of  record  ;  and  he  is  entitled  to  like  fees  thereupon.  If  sufficient  personal 
property  of  a  delinquent  cannot  be  found  to  pay  the  fine  and  the  fees,  the  sheriff  must 
674 


PROCEEDINGS   TO   COLLECT   A   FINE.  675 

Art.  I.     Nature  of  Proceedings. 

arrest  the  delinquent,  and  detain  him  in  custody  until  he  pays  the  same,  as  upon  an 
execution  against  the  person,  issued  in  an  action,  out  of  the  Supreme  Court ;  and  he 
is  entitled  to  like  fees  thereupon. 
2  R.  S.  484,  §  25. 

§  2297.     [Am'd,  1895.]    Return  thereof. 

The  sheriff  must  return  the  warrant,  with  his  proceeding  thereupon,  at  the  term  of 
the  court ;  or,  where  the  fine  was  imposed,  in  any  county  except  New  York,  by  the 
Supreme  Court,  or  the  county  court,  at  the  term  of  the  county  court,  held  next  after 
the  expiration  of  sixty  days  from  the  receipt  thereof.  If  he  fails  to  do  so,  the  district 
attorney  must  take  the  same  proceedings  to  compel  a  return,  as  may  be  taken  by 
a  judgment  creditor,  where  a  sheriff  omits  to  return  an  execution,  issued  out  of  the 
Supreme  Court. 

Id.  §  26;  L.  1895,  ch.  946. 

§  2298.  Proceedings  if  fine  not  collected. 

Where  it  appears,  by  return,  that  a  fine  remains  uncollected,  and  it  does  not  appear 
that  the  sheriff  has  the  delinquent  in  custody,  the  district  attorney  must,  if  he  has 
good  reason  to  believe  that  the  sheriff  might,  with  due  diligence,  have  collected  the 
fine,  or  arrested  and  detained  the  delinquent,  commence  an  action  against  the  sheriff, 
in  the  name  of  the  people.  Otherwise  he  must  direct  the  clerk  to  issue  a  new  warrant, 
or  to  include  the  fine  in  the  schedule,  annexed  to  the  warrant,  to  be  issued  by  him. 
A  new  warrant  may,  from  time  to  time,  be  issued,  or  the  fine  may  be  included  in  the 
schedule  annexed  to  a  subsequent  warrant  until  it  is  collected. 

Id.  §  27. 

§  2299.  Who  to  be  included  in  schedule. 

Where  the  clerk  issues  a  warrant,  as  prescribed  in  this  title,  he  must  include  in  the 
schedule  thereto  annexed,  the  name  of  each  person  who  has  been  fined,  prior  to  the 
issuing  thereof,  and  whose  fine  remains  then  wholly  or  partly  unpaid,  and  not  remitted 
by  the  court. 

Id.  §  28. 

§  2300.  Liability  of  sheriff. 

An  action  may  be  maintained,  in  behalf  of  the  people  against  a  sheriff  to  whom  a 
warrant  is  directed  and  delivered,  as  prescribed  in  this  title,  to  recover  damages  for 
any  omission  of  duty  with  respect  to  the  same,  in  a  case  where  a  judgment  creditor 
might  maintain  an  action  against  a  sheriff,  to  whom  an  execution  issued  out  of  the 
Supreme  Court  is  directed  and  delivered.  In  such  an  action,  the  people  are  entitled 
to  recover  the  same  damages,  which  a  judgment  creditor  would  be  entitled  to  recover, 
if  the  order  imposing  the  fine  was  a  judgment  of  the  Supreme  Court. 

§  2301.  Application  of  this  title. 

This  title  does  not  apply  to  a  case,  where  special  provision  for  the  collection  of  a  fine 
is  otherwise  made  by  law. 

This  proceeding  is  a  revision  of  2  Revised  Statutes  (2  Edm. 
506),  with  changes  relative  to  procedure.  No  cases  are  cited  under 
any  of  the  statutes,  nor  are  any  decisions  reported  throwing  light 
on  the  procedure.  The  principal  changes  consist  in  imposing  the 
duties  on  the  clerk  of  the  court,  which,  under  the  statute,  were 
required  to  be  discharged  by  the  district  attorney. 


676  PROCEEDINGS   TO    COLLECT   A   FINE. 


Art.    I.     Precedent  for  Warrant. 


In  the  county  of  Kings,  by  the  terms  of  §  1 1  56,  special  provision 
is  made  as  to  collection  of  fines  of  jurors. 

Precedent  for  Warrant. 

To  the  Sheriff  of  the  County  of  Ulster,  greeting  : 

Whereas,  At  a  county  court  and  court  of  sessions  in  and  for  the 
county  of  Ulster,  held  at  the  court-house  in  Kingston,  on  the  21st 
day  of  March,  1887,  an  order  was  duly  made,  imposmg  upon  the 
persons  named  in  the  annexed  schedule  the  fines  opposite  their 
names  : 

Now,  therefore,  you  are  commanded,  m  the  name  of  the  people  ot 
the  State  of  New  York,  to  collect  from  each  of  the  persons  named  in 
the  schedule  attached  to  this  warrant  the  sum  set  opposite  that  per- 
son's name,  and  to  pay  over  the  sum  so  collected  to  the  county 
treasurer  of  the  county  of  Ulster. 

Witness,  Hon.  William  S,  Kenyon,  county  judge  of  Ulster 
Tl  s  1  County,  at  the  court-house  in  Kingston,  on  the  21st  day  of 
*■  ■  March,  1887.  J.  D-  WURTS, 

{Attach  schedule.)  Clerk. 

Schedule. 

At  a  county  court  and  court  of  sessions,  held  at  the  court-house  in 
Kingston,  in  and  for  the  county  of  Ulster,  on  the  21st  day  of 
March,  1887  : 

Present: — Hon.  William  S.  Kenyon,  County  fudge. 

In  the  Matter  of  Fines  Imposed   upon  certain 
Jurors. 


At  a  term  of  this  court,  held  as  aforesaid,  it  appearing  that  the 
following-named  jurors,  duly  summoned  to  attend  thereat,  failed  to 
appear  without  excuse  therefor,  it  is  ordered  that  the  persons  named 
in  the  schedule  below  be  fined  the  amount  placed  opposite  their 
respective  names  and  residences  for  such  failure  to  attend  : 

Amount 
NAMK.  Residence.  of  Fine.  Cause  of  Fine. 

Jacob  C.  Deyo Woodstock $25  Non-attendance  as  juror. 

Henry  R.  Miller Shavvangunk 25  Non-attendance  as  juror. 

William  C.  Geldart Marlboro 25  Non-attendance  as  juror. 

John  L.  Brink Saugerties 25  Non-attendance  as  juror. 

I'atrick   Kearney Kingston 25  Non-attendance  as  juror. 

I.  Jacob  D.  Wurts,  clerk  of  the  County  Court  and  Court  of  Sessions, 
tlo,  pursuant  to  the  provisions  of  the  Code  of  Civil  Procedure,  certify 
that  the  foregoing  schedule  contains  a  true  statement  of  the  fines 
imposed  upon  the  above-named  persons,  at  the  above  term,  with 
their  true  places  of  residence  and  cause  of  said  fine,  and  that  the 
above  order  is  a  true  abstract  of  the  order  imposing  such  fines. 

Dated  March  19,  1887.  JACOB  D.   WURTS. 

[l.  s.]  Clerk. 


PROCEEDINGS   TO   COLLECT  A   FINE.  ^-JJ 

Art.  I.     Form  of  Return. 

By  provisions  of  §  1089,  subdivision  4,  the  certificate  of  fines 
imposed  in  the  city  of  New  York  must  be  returned  by  the  clerk 
to  the  commissioner  of  jurors. 

Form  of  Return. 

Ulster  County,  ss.  : 

I,  George  Young,  sheriff  of  Ulster  County,  do  make  and  file  my 
return  to  the  within  warrant.  I  certify  that  pursuant  to  the  com- 
mand of  said  warrant  I  have  collected,  by  levy  and  sale  of  personal 
property,  the  fines  therein  ordered  to  be  collected  from  Jacob  C. 
Deyo,  Henry  R.  Miller,  and  Patrick  Kearney,  and  have  paid  the 
same,  being  the  sum  of  $75,  to  John  Derrenbacher,  county  treasr 
urer  of  Ulster  County,  and  taken  his  receipt  therefor. 

That  I  have  been  unable  to  find  sufficient  personal  property  of 
William  C.  Geldart  to  satisfy  the  fine  against  him,  or  any  part 
thereof,  and  I  have  arrested  the  said  William  C.  Geldart,  and  now 
detain  him  in  my  custody  as  commanded  by  said  warrant.  I  further 
certify  that  John  L.  Brink  is  not  to  be  found  in  the  county  of  Ulster, 
having  removed  therefrom  to  the  State  of  Kansas,  since  the  imposi- 
tion of  said  fine.  GEORGE  YOUNG, 

Sheriff. 
By  GEORGE  DUMOND, 

Under  Sheriff, 


CHAPTER  XVII. 

PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR 

LIFE. 

Sections  of  the  Code  and   Where  Found   in  this  Chapter. 

SEC.  ART.   PAGB. 

2302.  Petition  for  production  of  tenant  for  life i  678 

2303.  Contents  of  petition ■  t  678 

2304.  Service  of  petition  and  notice t  678 

2305.  Proceedings  upon  presentation  of  petition i  679 

2306.  Service  of  order ;  powers,  etc.,  of  referee i  679 

2307.  Habeas  corpus i  679 

2308.  Report  of  referee i  679 

2309.  Dismissal  of  petition  when  order  complied  with i  679 

2310.  When  life  tenant  deemed  dead,  and  petitioner  let  into  possession. . .  i  680 

23 11.  Commission  to  be  issued  if  life  tenant  is  without  the  State i  680 

2312.  General  provisions  respecting  the  commission i  680 

2313.  Petitioner  to  give  notice  of  its  execution i  680 

2314.  Execution  thereof i  680 

2315.  Proceedings  on  return  of  commission i  681 

2316.  Costs I  681 

2317.  Property;  when   restored i  681 

2318.  Remedy  of  person  evicted  for  profits,  etc i  681 

2319.  Order  not  concuslve  in  ejectment i  681 

g  2302.  Petition  for  production  of  tenant  for  life. 

A  person  entitled  to  claim  real  property,  after  the  death  of  another  who  has  a  prior 
estate  therein,  may,  not  oftener  than  once  in  each  calendar  year,  apply  by  petition  to 
the  Supreme  Court,  at  a  .Special  Term  thereof,  held  within  the  judicial  district,  wherein 
the  property,  or  a  part  thereof,  is  situated,  for  an  order,  directing  the  production  of 
the  tenant  for  life,  as  prescribed  in  this  title  by  a  person,  named  in  the  petition,  against 
whom  an  action  of  ejectment  to  recover  the  real  property  can  be  maintained,  if  the 
tenant  for  life  is  dead,  or,  where  there  is  no  such  person,  by  the  guardian,  husband, 
trustee,  or  other  person,  who  has,  or  is  entitled  to,  the  custody  of  the  person  of  the 
tenant  for  life,  or  in  the  care  of  his  estate. 

2  R.  S.  343,  §  I  (2  Edm.  354). 

§  2303.  Contents  of  petition. 

The  petition  must  be  in  writing,  and  verified  by  the  affidavit  of  the  petitioner,  to  the 
effect,  that  the  matters  of  fact  therein  set  forth  are  true.     It  must  contain  : 

T.  A  description  of  the  real  property,  and  a  statement  of  the  petitioner's  interest 
therein,  and  of  such  other  facts  as  show  that  the  case  is  within  the  provisions  of  the 
last  section. 

2.  An  averment  that  the  petitioner  believes  that  the  person,  upon  whose  life  the 
prior  estate  depends,  is  dead,  together  with  a  statement  of  the  grounds  upon  which 
the  petitioner's  belief  is  founded. 

Id.  §  2  and  part  of  §  3. 

t^  2304.  Service  of  petition  and  notice. 

A  copy  of  the  petition,  including  the  affidavit,  together  with  notice  of  the  time  and 
678 


PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE.     679 


Art.  I.     Sections  of  the  Code. 


place  at  which  the  petition  wiU  be  presented,  must  be  personally  served,  at  least  four- 
teen days  before  its  presentation,  upon  the  person  required,  by  the  prayer  thereof,  to 
produce  the  tenant  for  life. 
Remainder  of  §  3. 

§  2305.  Proceedings  upon  presentation  of  petition. 

Upon  the  presentation  of  the  petition  and  affidavit,  with  due  proof,  by  affidavit,  of 
service  of  a  copy  thereof,  and  of  the  notice,  if  sufficient  cause  to  the  contrary  is  not 
shown  by  the  adverse  party,  the  court  must  either  issue  a  commission,  as  prescribed 
in  the  following  sections  of  this  title;  or  make  an  order,  directing  the  adverse  party, 
at  a  time  and  place  therein  specified,  before  the  court,  or  a  referee  therein  designated, 
to  produce  the  person  upon  whose  life  the  prior  estate  depends,  or,  in  default  thereof, 
to  prove  that  he  is  living. 

R.  S.  343.  §  4- 

§  2306.  Service  of  order;  powers,  etc.,  of  referee. 

Where  an  order,  requiring  the  production  of  the  tenant  for  life,  or  proof  that  he  is 
living,  is  made  as  prescribed  in  the  last  section,  a  certified  copy  thereof  must  be  served, 
at  least  fourteen  days  before  the  time  therein  specified,  upon  the  person  required  to 
make  the  production  of  the  proof,  or  upon  his  attorney.  Upon  presentation  of  proof 
of  service,  by  affidavit,  the  court  or  the  referee  must,  at  the  time  and  place  specified  in 
the  order,  or  at  the  time  and  place  to  which  the  hearing  may  be  adjourned,  hear  the 
allegations  and  proofs  of  the  parties,  respecting  the  identity  of  any  person  produced, 
■with  the  person  whose  death  is  in  question  ;  or,  if  the  latter  person  is  not  produced, 
respecting  the  reasons  for  the  failure  to  produce  him,  and  whether  he  is  living. 
Where  a  referee  is  appointed,  he  has  the  same  powers,  and  is  entitled  to  the  same 
compensation,  as  a  referee  appointed  for  the  trial  of  an  issue  in  an  action. 

Id.  §  5. 

§  2307.  Habeas  corpus. 

If  it  appears,  by  affidavit,  to  the  satisfaction  of  the  court,  that  the  person  required 
to  be  produced  is  imprisoned  within  the  State,  for  any  cause,  except  upon  a  sentence 
for  a  felony,  or  is  kept  or  detained  within  the  State,  by  any  person,  the  court  may, 
either  before  or  after  making  the  order  for  production,  issue  a  writ  of  habeas  corpus  to 
bring  him  before  it,  or  before  the  referee,  as  the  case  requires.  The  writ  must  be 
served  and  executed,  and  disobedience  thereto  may  be  punished,  as  where  a  writ  of 
■habeas  corpus  is  issued,  to  inquire  into  the  cause  of  the  detention  of  a  prisoner. 

Id.  §  7. 

§  2308.  Report  of  referee. 

The  referee  must  deliver  his  report  to  the  petitioner,  or  file  it  with  the  clerk,  within 
"ten  days  after  the  case  is  closed.  He  must  state  therein,  whether  any  person  was  or 
was  not  produced  before  him,  as  being  the  person  whose  death  is  in  question.  He 
must  append  thereto,  in  the  form  of  depositions,  the  proofs,  if  any,  respecting  the 
identity  of  any  person  so  produced,  with  the  person  whose  death  is  in  question  ;  or  if 
no  one  is  so  produced,  upon  the  question  whether  the  latter  person  is  living.  He  must 
also  state,  in  his  report,  his  conclusions  upon  the  questions  controverted  before  him. 

Id.  §  8. 

§  2309.  Dismissal  of  petition  when  order  complied  with. 

If  it  appears,  to  the  satisfaction  of  the  court,  upon  the  referee's  report,  and  the 
proofs  thereto  appended  ;  or,  where  a  referee  is  not  appointed,  upon  the  allegations  and 
proofs  of  the  parties  before  the  court ;  that  the  party,  required  to  produce  the  tenant 
for  life,  or  to  prove  his  existence,  has  fully  complied  with  the  order,  the  court  must 


68o    PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE. 


Art.   I.     Sections  of  the  Code. 


make  an  order  dismissing  the  petition,  and  requiring  the  petitioner  to  pay  the  costs  of 
the  proceedings. 

2  R.  S.  343,  §  9- 

§  2310.  When  life  tenant  deemed  dead,  and  petitioner  let  into 
possession. 

If  it  appears,  from  the  referee's  report,  or  upon  the  hearing  before  the  court,  that 
the  person,  upon  whose  life  the  prior  estate  depends,  was  not  produced  ;  and  if  the 
party  required  to  produce  him,  or  to  prove  his  existence,  has  not  proved,  to  the  satis- 
faction of  the  court,  that  he  is  living;  a  final  order  must  be  made,  declaring  that  he 
is  presumed  to  be  dead,  for  the  purpose  of  the  proceedings,  and  directing  that  the 
petitioner  be  forthwith  let  into  possession  of  the  real  property,  as  if  that  person  was 
actually  dead. 

Id.  §  lo. 

g  2311.  Commission  to  be  issued  if  life  tenant  is  without  the 
State. 

If  before  or  at  the  time  of  the  presentation  of  the  referee's  report  to  the  court,  or, 
where  a  referee  is  not  appointed,  at  any  time  before  the  final  order  is  made,  the  party, 
upon  whom  the  petition  and  notice  are  served,  presents  to  the  court  presumptive  proof, 
by  affidavit  that  the  person,  whose  death  was  in  question,  is,  or  lately  was,  at  a  place 
certain,  without  the  State,  the  court  must  make  an  order,  requiring  the  petitioner  to 
take  out  a  commission,  directed  to  one  or  more  persons,  residing  at  or  near  that  place, 
either  designated  in  the  order,  or  to  be  appointed  upon  a  subsequent  application  for 
the  commission  for  the  purpose  of  obtaining  a  view  of  the  person,  whose  death  is  in 
question,  and  of  taking  such  testimony  respecting  his  identity,  as  the  parties  produce. 
The  order  must  also  direct  that  the  proceedings  upon  the  petition  be  stayed,  until  the 
return  of  the  commission ;  and  that  the  petition  be  dismissed  with  costs,  unless  the 
petitioner  takes  out  the  commission  within  a  time  specified  in  the  order,  and  diligently 
procures  it  to  be  executed  and  returned,  at  his  own  expense. 

Id.  §  II. 

§  2312.  General  provisions  respecting  the  commission. 

It  is  not  necessary,  unless  the  court  specially  so  directs,  that  the  witnesses  to  be  ex- 
amined should  be  named  in  the  commission,  or  that  interrogatories  should  be  annexed 
thereto.  The  commission  must  be  executed  and  returned,  and  the  deposition  taken 
must  be  filed  and  used,  as  prescribed  for  those  purposes  in  article  second  of  title  third 
of  chapter  ninth  of  this  act,  except  as  otherwise  specially  prescribed  in  this  title. 

§  2313.  Petitioner  to  give  notice  of  its  execution. 

The  petitioner  must  give  to  the  adverse  party,  or  his  attorney,  written  notice  of  the 
time  when,  and  the  place  where  the  commissioner  or  commissioners  will  attend,  for 
the  purpose  of  executing  the  commission,  as  follows  : 

1.  If  the  place,  where  the  commission  is  to  be  executed,  is  within  the  United  States, 
or  the  dominion  of  Canada,  he  must  give  at  least  two  months'  notice. 

2.  If  it  is  within  either  of  the  West  India  islands,  he  must  give  at  least  three  months' 
notice. 

3.  In  every  other  case,  he  must  give  at  least  four  months'  time. 

Notice  may  be  given,  as  required  by  this  section,  by  serving  it  as  prescribed  in  this 
act  for  the  service  of  a  paper  upon  an  attorney,  in  an  action  in  the  Supreme  Court. 
2  R.  S.  343,  §  12. 

§  2314.  Execution  thereof. 

The  commissioner  or  commissioners  possess  the  same  powers,  and  must  proceed  in 


PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE.    68 1 

Art.   I.     Sections  of  the  Code. 

the  same  manner,  as  a  referee,  appointed  by  an  order  requiring  the  production  of  the 
tenant  for  life,  or  proof  of  his  existence  ;  except  that  they  cannot  proceed,  unless  a 
person  is  produced  before  them,  as  being  the  person  whose  death  is  in  question.  The 
return  to  the  commission  mmst  expressly  state  whether  any  person  was  or  was  not  so 
produced.  The  testimony,  respecting  the  identity  of  a  person  so  produced,  must  be 
taken,  unless  otherwise  specially  directed  by  the  court,  as  prescribed  in  chapter  ninth 
of  this  act,  for  taking  the  deposition  of  a  witness  upon  oral  interrogatories;  except 
that  it  is  not  necessary  to  give  any  other  notice  of  the  time  and  place  of  examination, 
than  that  prescribed  in  the  last  section. 
Id.  part  of  §  13. 

§  2315.  Proceedings  on  return  of  commission. 

Upon  the  return  of  the  commission,  the  proceedings  are  the  same  as  upon  the  report 
of  a  referee,  as  prescribed  in  §§  2309  and  2310  of  this  act;  but  the  court  may,  in  its 
discretion,  receive  additional  proofs  from  either  party. 

Substituted  for  §§  13,  14,  15,  and  16. 

§  2316.  Costs. 

Where  costs  ofa  special  proceeding,  taken  as  prescribed  in  this  title,  are  awarded, 
they  must  be  fixed  by  the  court  at  a  gross  sum,  not  exceeding  fifty  dollars,  in  addition 
to  disbursements.  Where  provision  is  not  specially  made  in  this  title  for  the  award  of 
costs,  they  must  be  denied,  or  awarded  to  or  against  either  party,  as  justice  requires. 

Id.  §  18. 

§  2317.  Property;  when  restored. 

The  possession  of  real  property,  which  has  been  awarded  to  the  petitioner ;  as  pre- 
scribed in  this  title,  upon  the  presumption  of  the  death  of  the  person,  upon  v/hose  life 
the  prior  estate  depends,  must  be  restored,  by  the  order  of  the  court,  to  the  person 
evicted,  or  to  his  heirs  or  legal  representatives,  upon  the  petition  of  the  latter,  and 
proof,  to  the  satisfaction  of  the  court,  that  the  person  presumed  to  be  dead  is  living. 
The  proceedings  upon  such  an  application  are  the  same,  as  prescribed  in  this  title, 
upon  the  application  of  the  person  to  whom  possession  is  awarded. 

Id.§  19.    - 

§  2318.  Bemedy  of  person  evicted  for  profits,  etc. 

A  person  evicted,  as  prescribed  in  this  title,  may,  if  the  presuraption,  upon  which 
he  is  evicted,  is  erroneous,  maintain  an  action  against  the  person  who  has  occupied 
the  property,  or  his  executor  or  administrator,  to  recover  the  rents  and  profits  of  the 
property,  during  the  occupation,  while  the  person  upon  whose  life  the  prior  estate 
depends,  is  or  was  living. 

2  R.  S.  343,  §  20. 

§  2319.  Order  not  conclusive  in  ejectment. 

A  final  order,  made  as  prescribed  in  this  title,  awarding  to  the  petitioner  the  posses- 
sion of  real  property,  is  presumptive  evidence  only,  in  an  action  of  ejectment,  brought 
against  him  by  the  person  evicted,  or  in  an  action  brought  as  prescribed  in  the  last 
section,  of  the  life  or  death  of  the  person,  upon  whose  life  or  death  the  prior  estate 
depends. 

This  proceeding  only  applies  in  a  case  where  the  prior  estate 
is  held  by  one  who  is  a  life  tenant  proper  in  the  legal  and  tech- 
nical sense  of  the  term.  And  therefore  in  a  case  where  a  testator 
left   real  property  in   fee-simple    to   a  daughter,   her  heirs  and 


•682    PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE. 


Art.   I.     Petition  for  Production  of  Life  Tenant. 


assigns  forever,  but  upon  the  condition  that  should  said  daughter 
die  without  issue,  that  then  the  real  property  was  given  to  a 
nephew  ;  it  was  held  that  the  death  of  the  daughter  could  not 
be  determined  in  this  proceeding  on  the  ground  that  the  only 
question  that  could  be  determined  was  the  question  of  the  death 
of  the  life  tenant,  and  that  it  did  not  appear  that  the  daughter 
mentioned  was  a  life  tenant  in  the  legal  and  technical  sense  of 
the  term,  but  that  the  same  depended  upon  a  construction  of 
the  will  which  could  not  be  had  in  this  proceeding.  Matter  of 
Hyde,  41  Hun  73,  11  Civ.  Pro.  155. 

This  is  a  substitute   for  the  provisions  of  R.  S.  343  (2  Edm. 
354),  with  §  2319  added. 

Petition  for  Production  of  Life  Tenant. 

SUPREME  COURT,  Ulster  County. 

In  the  Matter  of  the  Application  of  Joseph  H. 
Freer,  to  discover  the  death  of  Alice  W. 
Moon. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  Joseph  H.  Freer,  of  the  city  of  Albany,  respect- 
fully shows  to  thecourt  that  he  is  the  owner  in  fee,  and  entitled  to  . 
the  possession,  subject  to  the  life  estate  of  Alice  W.  Moon,  of  all  that 
farm  of  land,  lying-  and  beings  in  the  town  of  Berne,  in  the  county  of 
Albany  (insert  description).  That  the  same  was  demised  to  him  by- 
last  will  and  testament  of  Henry  Freer,  the  father  of  your  peti- 
tioner, and  then  husband  of  said  Alice  W.  Moon,  subject  to  the  life 
estate  of  said  Alice  W.  Moon,  by  will,  probated  on  the  loth  day  of 
June,   1868. 

That  your  petitioner  is  informed  and  believes  that  said  Alice  W. 
Moon  is  dead  ;  that  as  your  petitioner  is  informed  and  believes  she 
left  the  county  of  Albany  in  1881,  for  the  State  of  Iowa,  and  there 
resided  for  a  time  with  a  daughter.  That  she  has  not  been  heard 
from  for  three  years  last  past,  having-  left  the  said  ."^tate  of  Iowa 
about  that  time. 

That  as  your  petitioner  verily  believes,  her  death  is  concealed  by 
John  Moon,  her  son,  who  resided  and  now  resides  on  the  property 
hereinbefore  described,  and  claims  the  right  of  possession  under 
said  life  tenant. 

Wherefore  your  petitioner  prays  that  an  order  be  granted  directing 
the  production  of  said  Alice  W.  Moon,  by  the  said  John  Moon,  at  a 
time  and  place  to  be  therein  named,  and  for  such  other  or  further 
relief  as  to  the  court  may  seem  just.  JOSEPH  H.  FREP:R. 

(Add  verification  as  to  pleading:) 


PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE.    683 


Art.   I.     Form  for  Notice,  etc. 


Form  for  Notice. 

(Title  as  above.) 

Please  take  notice,  that  the  petition  of  Joseph  H.  Freer,  a  copy  ot 
which  is  hereto  annexed,  will  be  presented  to  the  Supreme  Court,  at 
a  Special  Term,  to  be  held  at  the  city  hall,  in  the  city  of  Albany, 
on  the  28th  day  of  April,  1887,  at  the  opening  of  the  court  on  that 
day  or  as  soon  thereafter  as  counsel  can  be  heard,  and  an  applica- 
tion' will  be  then  and  there  made  for  the  relief  prayed  for  by  said 
petition. 

Dated  April  10,  1887.  Yours,  etc., 

^  JAS.  W.  BENTLEY, 

To  JOHN  MOON.  Attorney  for  Petitioner. 

Precedent  for  Order. 

At  a  Special  Term  of  the  Supreme  Court,  etc. 
(Title  as  above.) 

On  reading  and  filing  the  verified  petition  of  Joseph  H.  Freer,  by 
which  it  appears  that  he  is  the  owner  in  fee  of  certain  premises 
therein  described,  and  that  the  said  premises  are  subject  to  the  life 
estate  of  Alice  W.  Moon,  whom  he  believes  to  be  dead,  and  on  due 
proof  of  service  hereof,  together  with  the  notice  of  presentation  to 
the  court  at  this  term,  more  than  fourteen  days  since  :  Now,  after 
hearino- James  W.  Bentley,Esq.,  for  the  application,  andE.  D.  Ronan, 
Esq.,  opposed,  it  is  ordered  that  the  said  John  Moon  produce  the 
said  Alice  W.  Moon,  before  Charles  J.  Buchanan,  Esq.,  who  is  hereby 
appointed  referee  for  that  purpose,  at  the  office,  in  the  city  of  Albany, 
on  the  15th  day  of  May,  1887,  at  ten  o'clock  in  the  forenoon,  or  in 
default  thereof  to  prove  that  the  said  Alice  W.  Moon  is  living. 

S.  L.  MAYHAM, 

Justice  Supreme  Court. 

Precedent  for  Referee's  Report. 

(Title  as  above. ) 

To  the  Supreme  Court  of  the  State  of  New  York: 

The  report  of  Charles  J.  Buchanan,  sole  referee  appointed  in  this 
matter,  shows  to  the  court,  pursuant  to  the  order  of  this  court  here- 
tofore made  in  this  matter  :  I  attended  at  my  office  at  the  time  and 
place  therein  mentioned,  and  that  James  W.  Bentley,  Esq.,  appeared 
on  behalf  of  petitioner,  and  E.  D.  Ronan,  Esq. ,  on  behalf  of  John  Moon. 
I  further  report  that  Alice  W.  Moon,  the  tenant  for  life  of  the  prop- 
erty demised  in  the  petition,  also  appeared  before  me  at  the  same 
time  and  place,  and  her  identity  was  admitted  by  petitioners 
counsel.      All  which  is  respectfully  submitted. 

Dated  May  15,  1887.  CHARLES  J.   BUCHANAN, 

Referee. 

The  order  dismissing  the  proceedings  in  case  of  report  of 
compliance  with  former  order  will  be  the  usual  Special  Term 
order.     The  allowance  of  costs  is  regulated  by  §  2316. 


684        PROCEEDINGS  TO  DISCOVER  DEATH  OF  TENANT  FOR  LIFE. 
Art.   I.     Order  on  Return  of  Commission. 

Order  on  Return  of  Commission. 

At  a  Special  Term  of  the  Supreme  Court,  etc. 
(Title. ) 

On  reading  and  filing  the  return  to  the  commission  heretofore 
issued  to  Arthur  C.  Osborn,  of  Des  Moines,  Iowa,  directing  him  to 
obtain  a  view  of  the  person  of  Alice  W.  Moon,  whose  death  is  in 
question  in  this  proceeding,  and  to  take  such  proof  as  might  be  pre- 
sented to  him  touching  her  identity,  and  having  heard  James  W. 
Bentley.  Esq.,  on  behalf  of  the  petitioner,  and  E.  D.  Ronan,  Esq., 
opposed,  and  it  appearing  by  said  commission  that  said  Alice  W. 
Moon  died  on  the  12th  day  of  June,  1884  at  the  city  of  Des  Moines, 
Iowa  : 

Now  it  is  ordered  that  the  said  petitioner,  Joseph  H.  Freer,  be  let 
into  possession  of  the  premises  described  in  the  petition,  and  John 
Moon  is  hereby  ordered  to  so  let  the  said  Joseph  H.  Freer  into  pos- 
session thereof.  S.  L.  MAYHAM, 

Justice  Supreme  Court. 


CHAPTER  XVIII. 

PROCEEDINGS  FOR  THE  APPOINTMENT  OF  A  COMMITTEE 

OF  THE  PERSON  AND  OF  THE  PROPERTY  OF  A  LU- 
NATIC, IDIOT,  OR  HABITUAL  DRUNKARD.  GENERAL 
POWERS  AND  DUTIES  OF  THE  COMMITTEE. 

PAGE. 

Article   i.   Jurisdiction     of    supreme    and    county    court,    and 

how  exercised.      §§  2320,    2321,    2322 686 

2.  Application  for  committee.      §§  2323,    2323a,    2323b, 

2336a,  2324 695 

3.  Petition   and  proceedings  thereon.      §§  2325,    2326, 

2327,     2328,     2334 696 

4.  Hearing-     before     commissioners.      §§    2329,     2330, 

2331,   2332,   2333,2335 706 

5.  Proceedings  on  return  of  commission.     §§2336,2337.  711 

6.  Powers  and  duties  of  committee.      §§  2338-2344-  •  •  716 

Sections  of  the  Code  and  Where  Found  in  this  Chapter. 

SEC.                                                                                                                                                                                                                             ART.  PAGE. 

2320.  Jurisdiction  ;  concurrent  jurisdiction i  686 

2321.  Duty  of  court  having  jurisdiction I  686 

2322.  Committee  may  be  appointed i  686 

2323.  Application  for  committee  ;  by  wiiom  made 2  695 

2323a.  Application  when    incompetent    person    is  in  a  State  institution ; 

petition,  by  whom  made  ;  contents  and  proceedings  upon  pres- 
entation   thereof 2  695 

2323b.  Costs  of  proceedings 2  696 

2324.  Duty  of  certain  officers  to  apply 2  696 

2325.  Contents,  etc.,  of  petition  :  proceedings  upon  presentation  thereof .. .       3  696 

2326.  When  foreign  committee  may  be  appointed 3  697 

2327.  Order  for  commission,  or  for  trial  by  jury  in  court 3  697 

2328.  Contents  of  commission 3  698 

2329.  Commissioners  to  be  sworn  ;  vacancies,  how  filled 4  706 

2330.  Jury  to  be  procured,  proceedings  thereupon 4  706 

2331.  Proceedings  upon  the  hearing 4  707 

2332.  Return  of  inquisition  and  commission 4  707 

2333.  Expenses  of  commission 4  707 

2334.  Proceedings  upon  trial  by  jury  in  court 3  698 

2335.  Subject  of  inquiry  in  cases  of  lunacy 4  707 

2336.  Proceedings  upon  verdict  or  return  of  commission 5  711 

2336a.   Sections  of  this  title  not  applicable  when  application  for  committee 

is  made  under  authority  of  this  State 2  696 

2337.  Security  to  be  given  by  committee 5  711 

2338.  Compensation  of  committee 6  716 

685 


686  COiMMITTEE   FOR   LUNATICS,  ETC. 

Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

SBC.  ART.  PAGE. 

2339.  Committee  under  control  of  court ;  limitation  of  powers 6  716 

2340.  Committee  of  property  may  maintain  actions,  etc 6  716 

2341.  Id. ;  to  file  inventory  and  account 6  716 

2342.  Id. ;  may  be  compelled  to  file   the  same,  or  render  an  additional 

account,  etc 6       717 

2343.  Property,  when  to  be  restored 6       717 

2344.  Id. ;  disposition  in  case  of  death 6      718 

ARTICLE  I. 

Jurisdiction  of  Supreme  and  County  Court,  and  How- 
Exercised.    §§  2320,  2321,  2322. 

§2320.     [Ara'd,  1895.]     Jurisdiction;    concurrent  jurisdiction. 

The  jurisdiction  of  the  Supreme  Court  extends  to  the  custody  of  the  person  and  the 
care  of  the  property  of  a  person  incompetent  to  manage  himself  or  his  affairs,  in  conse- 
quence of  lunacy,  idiocy,  habitual  drunkenness,  or  imbecility  arising  from  old  age  or  loss 
of  memory  and  understanding,  or  other  cause.  Where  a  county  court  has  jurisdiction 
of  those  matters,  concurrent  with  that  of  the  Supreme  Court,  the  jurisdiction  of  the 
court  first  exercising  it,  as  prescribed  in  this  title,  is  exclusive  of  that  of  the  others, 
with  respect  to  any  matter  within  its  jurisdiction,  for  which  provision  is  made  in  this 
title.  In  all  proceedings  under  this  title  for  the  appointment  of  a  committee  of  such 
a  person,  he  shall  be  designated  "  an  alleged  incompetent  person ;  "  and  after 
the  appointment  of  a  committee  of  such  person,  in  all  subsequent  proceedings  the 
lunatic,  idiot,  habitual  drunkard,  or  imbecile  shall  be  designated  "  an  incompetent 
person." 

L.  1895,  ch.  946. 

§  2321.   Duty  of  court  having  jurisdiction. 

The  court  exercising  jurisdiction  over  the  property  of  either  of  the  incompetent 
persons,  specified  in  the  last  section,  must  preserve  his  property  from  waste  or  de- 
struction ;  and,  out  of  the  proceeds  thereof,  must  provide  for  the  payment  of  his  debts, 
and  for  the  safekeeping  and  maintenance,  and  the  education,  when  required,  of  the 
incompetent  person  and  his  family. 

L.  1874,  ch.  446,  part  of  §  i. 

§  2322.  Committee  may  be  appointed. 

The  jurisdiction,  specified  in  the  last  two  sections,  must  be  exercised  by  means  of 
a  committee  of  the  person,  or  a  committee  of  the  property,  or  of  a  particular  portion 
of  the  property  of  the  incompetent  person,  appointed  as  prescribed  in  this  title.  The 
committet;  of  the  person  and  the  committee  of  the  property  may  be  the  same  individ- 
ual, or  different  individuals,  in  the  discretion  of  the  court. 

The  basis  of  this  title  is  chapter  444,  Laws  of  1874,  with  addi- 
tions by  way  of  regulating  the  practice.  Previous  to  the  codifi- 
cation, the  practice  was  uncertain,  and  must  be  .sought  for,  as  is 
said  by  the  codifiers,  in  the  adjudicated  cases  and  books  of  prac- 
tice, and  constituted  a  voluminous  and  intricate  system.  They 
further  say  that  they  "  have  carefully  endeavored  to  avoid  insert- 
ing statutory  restrictions  upon    the   courts,   tending   to  deprive 


COMMITTEE   FOR   LUNATICS,  ETC.  68/ 

Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

them  of  any  part  of  the  large  discretion  now  resting  in  them, 
which  it  is  necessary  to  preserve  for  the  benefit  of  the  unfortu- 
nate individuals  to  whom  this  title  applies."  A  change  is  made 
in  the  former  procedure  by  authorizing  a  trial  by  jury  at  a  trial 
term  of  the  court  instead  of  by  a  sheriff's  jury. 

The  present  statute  is  declaratory  of  the  common  law,  and  in 
terms  confines  the  jurisdiction  of  the  court  to  the  cases  of  a 
person  incompetent  to  manage  his  affairs  by  reason  of  lunacy, 
idiocy,  or  habitual  drunkenness.  It  was  held  in  the  Matter 
of  Brugh,  6i  Hun,  197,  that  the  statute  did  not  apply  to 
cases  of  mere  weakness  of  mind,  or  lack  of  business  capacity.  It 
should  be  noted,  however,  that  this  case  arose  in  1891,  when 
this  section  of  the  Code  limited  the  jurisdiction  of  the  court  to 
the  three  cases  therein  mentioned.  The  present  section  how- 
ever, gives  jurisdiction  to  the  court  in  cases  of  imbecility, 
arising  from  old  age,  or  loss  of  memory  or  understanding,  or 
other  cause.  The  English  procedure  with  reference  to  a  com- 
mission in  lunacy  is  discussed  somewhat  in  Re  Brown,  i  Abb. 
Pr.  108-109,  and  is  more  fully  considered  in  Hughes  v.  Jones,  116 
N.  Y.  6"/,  where  it  is  said  that  for  nearly  a  century  the  English 
practice  was  followed.  Vann,  J.,  in  that  case,  page  "jj  :  "  The 
primary  object  of  the  proceeding  is  not  to  benefit  any  particular 
individual,  but  to  see  whether  the  fact  of  mental  incapacity 
exists  so  that  the  public,  through  the  courts,  can  take  control." 
The  jurisdiction  of  the  Supreme  Court  over  lunatics  and  incom- 
petent persons  is  stated  as  follows,  in  Matter  of  B/ezuitt,  131 
N.  Y.  546  :  "  The  jurisdiction  which  formerly  was  vested  in  the 
chancellor  over  the  person  and  estates  of  lunatics  is  now  exer- 
cised by  the  Supreme  Court.  But  the  Supreme  Court  exercises 
the  power  under  the  same  rules  as  appertained  to  and  regulated 
the  jurisdiction  of  the  chancellor,  subject  to  such  statutory  pro- 
visions on  the  subject  as  are  contained  in  the  Code  of  Procedure. 
(Code,  §  2320  et  seq.)  The  power  of  the  court  to  appoint  a  com- 
mittee of  the  person  and  estate  of  a  lunatic  is  very  essential,  but 
it  should  be  exercised  with  scrupulous  regard  to  the  rights  of  the 
alleged  lunatic  and  under  the  protection  whicli  attends  other  judi- 
cial proceedings  affecting  person  or  property,  modified  only  so 
far  as  the  peculiar  nature  of  the  inquiry  and  the  condition  of  the 
alleged  lunatic  may  render  modification  necessary."  Although 
the  Court  of  Common  Pleas  had  jurisdiction  over  the  person  and 


688  COMMITTEE   FOR   LUNATICS,  ETC. 


Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 


property  of  a  lunatic,  such  jurisdiction  was  concurrent  with  that 
of  the  Supreme  Court,  and  although  that  jurisdiction  was  exclu- 
sive when  so  exercised  (§  2320),  yet  in  regard  to  the  disposition 
of  the  property  of   a  lunatic   in   condemnation   proceedings   the 
Court  of  Common  Pleas  had  no  jurisdiction.     Matter  of  Board  of 
Street   Opening,   89    Hun,    527,  69   St.    Rep.    796.     And    further, 
although  the  Court  of   Common   Pleas  had  jurisdiction  in   these 
proceedings,  the  committee  of  the  estate   of  such  lunatic,  after 
the  death  of  the  lunatic,  can   be  compelled   to  account  to  the 
lunatic's  administrator  in  the  Supreme  Court,  although  said  com- 
mittee was  appointed  by  the  Court  of  Common  Pleas.     Butler  v. 
Jarvis,  51  Hun,  248,  4  Supp.  137  ;  see  contra,  dissenting  opinion 
of  Van  Brunt,  p.  276.     In  connection  with   §  2320  of  the  Code, 
see  §  340  of  the  Code,  subdivision  4,  which  also  states  the  con- 
current jurisdiction  of  the  county  court  with  that  of  the  Supreme 
Court  in  matters  relating  to  the  custody  of  the  person  and  care 
of  the   property  of  incompetents.     The   power  of  the   court   is 
limited  by  the  provisions  of   the   Code,  and   there   is  no  express 
authority  given  to  the  court  or  the  committee  appointed  by  the 
court,  to  dispose  of  property  of  a  lunatic.     Matter  of  Dunn,  64 
Hun,  20,  45    St.  Rep.  830.     See  Williams  v.  Empire  Woolen  Co., 
7  App.  Div.  348,  for   a  discussion  of  the  status  of  a  lunatic  in 
cases  where  he  has  not  been  declared  a  lunatic  and  no  committee 
has  been  appointed.     It  seems  that  though  the  county  court  is 
not  a  court  of  equity,  yet  where,  by  virtue  of  §§  340  and  3220  of 
the  Code,  it  once   acquires  jurisdiction   in   proceedings   for  the 
appointment   of  a   committee  of  a    lunatic,  that  any   equitable 
claim  presented  by  the  committee  in  asking  for  its  discharge  will 
be  disposed  of  on  equitable  principles  in  order  to  save  the  ex- 
pense and  annoyance  of  further  litigation.     Matter  of  Forkel,  % 
App.  Div.  400.     Where  the  original  proceedings  for  the  appoint- 
ment of  a  committee  were  commenced  in  the  county  court,  that 
court  has,  by  virtue  of  this  section,  exclusive  jurisdiction,  and 
therefore  is  the   only  court   having  jurisdiction   in  any  matters 
relating  to  the  payment  of  debts  of  the  lunatic.     And  where,  in 
violation  of  this  exclusive  jurisdiction,  an  action  is  brought  in  the 
Supreme  Court,  the  objection  that  the  county  court  has  exclusive 
jurisdiction  may  be  taken  for  the  first  time  on  appeal.     Matter 
of  Wing,  83  Hun,  286,  64  St.  Rep.  736,  31   Supp.  941.     Where  a 
committee  has  been  appointed  and  a  creditor  of  lunatic  gets  per- 


COMMITTEE   FOR   LUNATICS,  ETC.  689 

Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

mission  of  court  to  bring  action,  and  makes  both  committee  and 
lunatic  parties,  the  court  should  not  restrain  the  action,  for 
mental  incapacity  presents  not  interference  with  the  enforcement 
of  the  lunatic's  legal  liability.  Kent  v.  West,  16  App.  Div.  499. 
The  question  as  to  the  sanity  of  one  who  has  been  regularly 
committed  should  not  be  tried  upon  habeas  corpus  while  pro- 
ceedings for  the  appointment  of  a  committee  are  pending  which 
will  determine  the  question  with  the  aid  of  a  jury.  Matter  of 
Laurent,  ii  Abb.  N.  C.  120.  For  a  learned  and  interesting 
review  of  the  origin  and  history  of  lunacy  proceedings,  both  in 
England  and  in  this  country,  see  opinion  of  Vann,  J.,  in  Hughes 
V.Jones,  116  N.  Y.,  at  page  74. 

The  history  of  legislation  in  this  State  and  a  review  of  the 
rights  of  lunatics  and  habitual  drunkards,  respectively,  is  given 
in  Matter  of  Janes,  30  How.  446,  and  Matter  of  Brozvn,  i  Abb. 
108.  In  the  latter  case,  the  Superior  Court  of  the  city  of  New 
York  refused  to  issue  the  commission  of  lunacy  on  the  ground 
of  want  of  jurisdiction.  However,  by  subdivision  8  of  §  263  of 
the  Code,  the  power  is  now  expressly  defined.  The  same  juris- 
diction is  conferred  on  county  courts  by  §  340,  subdivision  4. 
See  Davis  v.  Spencer,  24  N.  Y.  386.  The  words  "  lunacy  "  and 
"■  lunatic  "  embrace  every  description  of  unsoundness  of  mind 
except  idiocy.  Section  3343,  Code,  sub.  15.  In  Stewarfs  Exec- 
utor V.  Lispenard,  26  Wend.  255,  Coke,  i  Inst.  246,  quoted  by 
Blackstone,  i  Comm.  343,  is  cited,  as  to  what  constitutes  lunacy, 
idiocy,  and  habitual  drunkenness,  to  this  effect :  "  Non  compos 
mentis  is  the  most  legal  term  for  all  defects  of  the  mind  which 
the  law  notices.     Non  compos  mentis  is  of  four  kinds  : 

"  I.  Idiota,  which  from  his  maturity  by  a  perpetual  infirmity 
is  non  compos  mentis. 

"  2.  He  that  by  sickness,  grief,  or  other  accident  wholly  loses 
his  memory  and  understanding. 

"  3.  A  lunatic  that  hath  sometimes  his  understanding  and 
sometimes  not. 

"4.  Lastly,  he  that  for  a  time  depresseth  himself  by  his  own 
vicious  act  of  his  memory  and  understanding,  as  he  that  is 
drunken." 

The  opinion  of  Verplanck  is  referred  to  as  a  very  exhaustive 
statement  of  the  various  definitions  of  lunacy  and  idiocy.  A  per- 
son may  from  old  age  become  so  weak  and  incapacitated  as  to 
44 


690  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

justify  the  appointment  of  a  commission.  Matter  of  Barker,  2 
Johns.  Ch.  232.  It  is  sufficient  to  justify  a  commission  that  a 
person  is  incapable  of  managing  his  own  affairs,  and  this  may 
arise  from  age,  infirmity,  or  other  misfortune.  Jackso7i  v.  King, 
4  Cow.  207  ;  Matter  of  Mason,  i  Barb.  437.  The  finding  that  the 
party  is  of  unsound  mind  and  mentally  incapable  of  governing 
himself  or  his  affairs  is  sufficient ;  the  word  "  lunatic  "  is  not 
requisite.  Ex  parte  Rogers,  (^  Ahh.^.C.  141.  A  recommendation 
of  the  jury  that  the  party,  from  long  confinement  and  its  con- 
sequences, may  require  some  temporary  guardianship,  does  not 
impair  the  legal  effect  of  the  finding.  Ex  parte  Dickie,  7  Abb. 
N.  C.  417.  The  finding,  however,  of  the  jury  must  be  that  the 
party  is  of  unsound  mind,  as  every  case  of  weakness  or  imbe- 
cility will  not  justify  a  commission,  but  the  mind  must  be  so  far 
impaired  as  to  be  reduced  to  a  state  which,  as  an  original  inca- 
pacity, would  have  constituted  a  case  of  idiocy.  Matter  of 
Morgan,  7  Paige,  236;  Matter  of  Mason,  3  Edw.  Ch.  380.  It  is, 
however,  held  in  the  late  case,  Matter  of  fackson,  37  Hun,  306, 
citing  earlier  cases,  and  relying  on  Delafieldv,  Parish,  25  N.  Y. 
103  ;  also  citing  Riggs  v.  American  Tract  Society,  84  id.  330,  that 
a  charge  to  the  jury  that  to  constitute  a  case  of  unsoundness  of 
mind,  which  will  justify  the  court  in  assuming  the  control  of  the 
person  and  property  of  the  person  by  a  committee,  his  mind  must 
be  so  far  impaired  that  if  it  had  never  been  elevated  above  that 
state  of  capacity  from  his  birth,  it  would  have  constituted  a  case 
of  idiocy,  was  erroneous,  as  one  may  be  wholly  incompetent  to 
manage  himself  and  his  affairs,  and  still  be  removed  from  a  state 
of  idiocy,  and  this  is  doubtless  the  present  rule.  See  Riggs  v. 
American  Tract  Society,  95  N.  Y.  503. 

Chancellor  Walworth,  in  the  Matter  of  Tracy,  i  Paige,  580,  says 
with  reference  to  what  constitutes  an  habitual  drunkard  :  "  But 
very  erroneous  impressions  seem  to  have  gone  abroad  on  this 
subject.  It  is  supposed  by  many  that  the  prosecutor  in  such  cases 
is  bound  to  prove  affirmatively,  that  an  habitual  drunkard  is  inca- 
pable of  managing  his  affairs  ;  on  the  contrary,  the  fact  that  a 
person  is  for  any  considerable  part  of  his  time  intoxicated  to 
such  a  degree  as  to  deprive  him  of  his  ordinary  reasoning  faculties 
is /r/w^/^aV  evidence  at  least  that  he  is  incapacitated  to  have 
the  control  and  management  of  his  property."  A  man  of  weak 
mind,  if  not  a  lunatic  or  a  fool,  can  contract.     Odell  v.  Buck,  21 


COMMITTEE    FOR    LUNATICS,  ETC.  69I 

Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

Wend.  142.  An  epileptic  of  enfeebled  mind  was  held  competent 
to  convey  property.  Spragiic  v.  Duel,  Clarke  Ch.  90,  affirmed,  1 1 
Paige,  480.  A  person  of  weak  mind  is  liable  for  necessaries. 
Skidnwre  v.  Roniainc,  2  Bradf.  122.  A  person  born  deaf  and  dumb 
is  not  necessarily  an  idiot.  Brower  v.  Fisher,  4.  Johns.  Ch.  441. 
Ever  since  the  Revised  Statutes,  the  court  has  had  control  of 
both  the  person  and  estate  of  habitual  drunkards.  Matter  of 
Lynch,  5  Paige,  120.  The  appointment  of  a  special  guardian  for 
a  party  as  a  lunatic,  upon  an  allegation  of  a  petitioner  in  a  pro- 
ceeding for  another  purpose,  is  a  mere  matter  of  routine  and  not 
adjudication  of  lunacy.  Estate  of  Spencer,  5  Redf.  425.  In 
Matter  of  Heeney,  2  Barb.  Ch.  326,  it  was  held  that  the  court  of 
chancery  had  power  to  provide  out  of  the  surplus  income  of  a 
lunatic  for  the  support  of  persons  not  his  next  of  kin,  and  whom 
the  lunatic  is  under  no  legal  obligations  to  support,  where  it  sat- 
isfactorily appears  to  the  chancellor,  that  the  lunatic  himself 
would  have  provided  for  the  support  of  such  persons  had  he  been 
of  sound  mind.  The  committee  of  a  lunatic  may  also  be  au- 
thorized to  keep  up  the  lunatic's  family  establishments  as  had  been 
his  custom  previous  to  his  lunacy,  and  to  place  at  his  disposal,  so 
long  as  he  is  competent  to  judge  of  the  claims  of  the  applicants, 
small  sums  of  money  for  the  purposes  of  charity,  as  well  as  to 
expend  a  sum  such  as  the  lunatic  was  accustomed  to  do  for  the 
support  of  religious  institutions.  But  the  coniinittee  may  not 
expend  sums  for  charity  or  benevolent  purposes  other  than  had 
been  the  habit  of  the  lunatic.  Tlie  same  rule  is  held  in  Matter 
of  Willoiighby ,  11  Paige,  257,  and  that  it  is  proper  to  allow  pro- 
visions for  the  near  relatives  of  the  lunatic  who  are  in  need  of 
such  assistance,  and  a  matter  of  course  to  make  such  provisions 
for  his  children.  The  court  in  all  these  matters  acts  for  the 
lunatic,  in  reference  to  the  lunatic,  as  it  supposes  he  would  have 
acted  if  he  had  been  of  sound  mind.  The  court  has  the  same 
power  over  habitual  drunkards  as  over  a  lunatic.  Ex  parte 
Lynch,  5  Paige,  120.  The  court  has  no  power  to  appoint  a  com- 
mittee of  a  lunatic  or  to  order  a  sale  of  his  property  before  a  com- 
mission has  been  issued  and  returned.  Ex  parte  Payn,%  How. 
220.  The  petition  for  a  commission  of  lunacy  against  a  non- 
resident must  show  that  he  is  the  owner  of  property  within  the 
State.  Ex  parte  Fowler,  2  Barb.  Ch.  305.  Where  a  lunatic  has 
wandered  from  home  to  someplace  unknown,  a  commission  could 


692  COMMITTEE   FOR   LUNATICS,  ETC. 


Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 


issue  from   the  court   of   chancery.     Ex  parte   Gausc,   9   Paige, 
416.     In   the   case   of    The  Parsee  Merchant,  11  Abb.  (N.  S.)  209, 
Judge  Daly  holds  that  the  court  has  the  right  and  it  is  its  duty 
to  do  whatever  is  most  conducive  to  the  interests  of  the  lunatic, 
to  see  that  he  is  maintained  as  comfortably  as  his  circumstances 
will  allow,  and  that  every  effort  is  made  to   restore  him  to  his 
health.     The  interests   of  the   lunatic   are    the    controlling  con- 
siderations and  not  those  of  the  expectant  successors  to  his  estate. 
It  has  been  held  that  the  statement  that  a  person  is  "  of  un- 
sound mind  and  understanding  and  so  far  deprived  of  his  reason 
and  understanding  as  to  be  altogether  unfit  and  unable  to  govern 
himself  or  manage  his  affairs,"  was  a  sufficient  statement  of  in- 
competency to  give  jurisdiction  to  the  county  court.    Jackson  v. 
Jackson,    n   Hun,    308.     Though  §   2320  of  the  Code  gives  the 
courts  power  to  declare  a  person  incompetent  to  manage  his  affairs 
yet  previous  to  such  proceedings  and  to  such  declaration  by  the 
court,  the  lunatic  is  not  prohibited  from  bringing  an  action,  as 
his  legal  status  is  not  changed  until  the  court  has  interposed  its 
jurisdiction   and    finally  declared  him  to    be  of   unsound  mind. 
Rnnberg  v.  Johnson,  1 1  Civ.  Pro.  Rep.  283.     The  same  rule  is  set 
forth  in  Hanley  v.  Brennan,  12  Civ.  Pro.  Rep.  151,  where  it  is  said 
that   the   court    may   appoint   a  guardian   ad  litem   for  a  lunatic, 
although  he  has  not  been  judicially  declared  insane  in  proceedings 
instituted   for  that   purpose,  and   though  no  committee  has  been 
appointed.     The  court  once  having  acquired  jurisdiction  by  the 
institution  of  proceeding,  still  retains  jurisdiction   to  direct  the 
payment  of   costs  of  the  proceedings   out  of  the  estate  of   the 
lunatic,   although  he   has  died   pending  the   confirmation  of  the 
finding  of  the  jury.      Matter  oj Lojt house,  3  App.  Div.  142.     An 
outline  of  the  present  jurisdiction  of  the  court  is  stated  by  Ward, 
J.,  in  the  Matter  oJ  LoJt house,  3  App.  Div.  142,  as  follows  :  •'  The 
codificrs  of  this  Code  say,  in  referring  to  this  title,  that  they  have 
carefully    endeavored  to    avoid    inserting   statutory   restrictions 
upon  the  courts  tending  to  deprive  them  of  any  part  of  the  large 
discretion  now  resting  in  them  which  it  is  necessary  to  preserve 
for  the  benefit  of  the  unfortunate  individuals  to  whom   this  title 
applies.     The  care  and  custody  of  lunatics  and  persons  of  unsound 
mind  was  formerly  vested  in  the  chancellor,  but  by  the  Constitu- 
tion of  1846  and  the  Judiciary  Act  supplementing  it,  this  power 
became  vested  in  the  Supreme  Court  and  in  the  county  courts  of 


COMMITTEE   FOR   LUNATICS,  ETC.  693 


Art.   I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 


the  several  counties  as  to  persons  residing  in  those  counties  con- 
current with  the  Supreme  Court,  so  that  the  original  chancery 
jurisdiction  vesting  in  this  court  upon  the  subject  has  not  been 
circumscribed  nor  limited  by  the  Code,  the  chapter   referred  to 
providing  the  procedure  to  be  adopted   in  appointing  the  com- 
mittee and  defining  its  duties  rather  than   defining  the  jurisdic- 
tion of  the  court  over  the   person  and  property  of  the  lunatic." 
Incompetency,  under  §  2320,   does   not   include  mere  weakness 
of  mind,    nor   lack  of  business  capacity,  still  less  want  of  busi- 
ness   experience.      Lunacy  as    defined    in    subdivision,    §    3343, 
Code   Civil   Procedure  (now   §   7,  Statutory  Construction  Law), 
embraces  every  description  of  unsoundness  of  mind  except  idiocy. 
Matter  of  Br  ugh,  61  Hun,  197.     See  this  case  for  certain  tests  of 
recovery    from    insanity    which    were    approved     by    the    court. 
Though  a  belief  in  spiritualism  may  not  be  inconsistent  with  busi- 
ness capacity  and  judgment,  yet  where  a  person  has  become  con- 
vinced  in   the  reality  of  communications   from    the   dead   to   a 
degree  where  the  disposition  of  her   property  and  her  personal 
action  is  governed  by  the  direction  of  deceased  persons,  and  she 
is  about  so  to  dispose  of  her  property,etc.,  a  case  is  presented  which 
calls  for  an  investigation  as  to  the  competency  of  such  person. 
Matter  of  Beach,  23  App.   Div.  411.     The  test   of  the  right  to 
control  property  is  not  competency  to  manage  a  particular  estate 
but  mental  health  and  consequent  fitness  for  the  management  of 
the  common  and  ordinary  affairs  of  life.     Matter  of  Williams,  24 
App.  Div.   251.     The  court  originally   acquiring  jurisdiction   in 
proceedings  for  the  appointment  of  a  committee  of  an  incompe- 
tent has  jurisdiction  to  determine  the  allowance  to  the  committee 
for  compensation,  counsel  fees,  and  expenses  for  the  board  and 
maintenance  of  the  lunatic  and  costs  of  the  proceedings.     Matter 
of  Board  of  Street  Opening,  89  Hun,  527,  69  St.  Rep.  796.     Though 
the  court  acquiring  jurisdiction  is  empowered  by  §  2321  to  pre- 
serve the  lunatic's  property    from   waste   and   destruction,   and 
provide   for  the   payment  of  his  debts  and  for  the   safekeeping 
and  maintenance  of  himself  and  family,  yet  the  committee  is  not 
empowered  by  this  section  to  execute  any  instrument,  in  the  case 
of  a  female  lunatic,  which  would  extinguish  her  inchoate  right  of 
dower.    J/c/Z/rr  (^/Z);/;///,  64  Hun,  78,  18  Supp.  723.     Section  2321, 
empowering  the  court  to  provide   for  the  payment  of  the  debts 
of  the  lunatic  out  of  the  proceeds  of  his  property,  means  the 


694  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.    I.     Jurisdiction  of  Supreme  and  County  Court,  and  How  Exercised. 

payment  of  his  debts  so  far  as  his  property  will  allow,  and  means 
^  pro  rata  distribution  in  case  the  property  is  not  sufficient  to 
pay  all  debts  in  full — a  general  or  specific  lien  being  the  only 
exception  to  this  rule.  Matter  of  Wing,  83  Hun,  285,  54  St. 
Rep.  736,  31  Supp,  941.  Section  2321,  providing  for  the  payment 
of  the  debts  of  a  lunatic,  includes  the  payment  of  a  debt  owing 
to  the  committee  and  incurred  previous  to  its  appointment. 
The  court  says:  "We  fail  to  see  why  a  debt  incurred  prior  to 
the  appointment  of  a  committee,  even  though  in  favor  of  the 
person  appointed,  should  not  be  treated  with  the  same  consider- 
ation as  though  it  were  one  existing  in  favor  of  a  stranger 
and  had  been  incurred  in  the  administration  of  the  estate."  Thus 
claims  for  advances  made  before  his  appointment  by  the  com- 
mittee for  the  support  of  the  two  minor  children  of  the  lunatic, 
were  allowed  him  upon  his  accounting  when  he  applied  for  dis- 
charge. Matter  of  Forkell,%  AT^p.'D'iv./^Oi.  The  committee  merely 
represents  the  courts  in  the  exercise  of  its  jurisdiction  over  the 
property  of  the  incompetent  person,  and  thus  where  the  estate 
has  been  benefited  by  the  collection  of  claims  by  an  attorney 
employed  to  do  so,  the  court  will  entertain  an  application  by  the 
attorney  for  payment  and  will  order  the  committee  to  pay  for 
such  services  from  the  funds.  Matter  of  Norton,  18  Misc.  407. 
But  the  court  has  no  further  jurisdiction  over  the  property  of  a 
person  formerly  incompetent  after  his  committee  has  been  dis- 
charged. It  cannot  compel  restitution  by  persons  to  whom  the 
former  lunatic  has  subsequently  transferred  his  property.  Matter 
of  Dozvei,  19  Misc.  688.  By  subdivision  4  of  §  340,  Code  Civil 
Procedure,  the  county  courts  have  concurrent  jurisdiction  with 
the  Supreme  Court  over  the  custody  of  the  person  and  the  care 
of  the  property  of  a  resident  of  the  county  who  is  incompetent 
to  manage  his  affairs,  but  by  ^  2320  the  court,  on  exercising  this 
jurisdiction,  has  exclusive  jurisdiction  with  respect  to  any  matter 
within  its  jurisdiction  for  which  provision  is  made,  therefore  when 
the  county  court  had  first  attained  jurisdiction,  the  Supreme  Court 
cannot  make  an  order  for  the  payment  of  the  lunatic's  debt. 
People  ex  rel.  Kenfield  v.  Lyon,  64  St.  Rep.  738.  But  as  to  the 
alienation  of  the  lunatic's  property  in  proceedings  for  that  purpose 
the  Code  is  to  be  strictly  construed,  and  as  no  express  power  is 
given  to  divest  a  lunatic  of  her  inchoate  right  of  dower  in  her 
husband's   property,    such    power   is   not   given    b}-    implication. 


COMMITTEE   FOR   LUNATICS,  ETC.  695 

Art.   2.     Application  for  Committee. 

Matter  of  Dunn,  64  Hun,  20.  This  case  is  now  only  valuable  as 
showing  the  strict  construction  given  to  the  statute,  as  now  by' 
the  amendment  of  1893  an  inchoate  right  of  dower  is  expressly 
stated  as  being  one  of  the  interests  in  real  property  of  a  lunatic 
or  incompetent  person  which  may  be  alienated.  The  committee 
merely  represents  the  court  in  the  exercise  of  its  power  over  the 
property  of  incompetents,  and  is  subject  to  the  order  of  the  court 
with  respect  to  the  care,  management,  and  disposition  of  such 
property.  Matter  of  Horton,  18  Misc.  407.  See  Code  Civil 
Procedure,  §  2339  ;  also,  Butler  v.  Jarvis,  51  Hun,  248,  4  Supp. 
137;  RiinbergN.  Johnson,  11  Civ.  Pro.  283. 

ARTICLE  n. 

Application  for  Committee.    §§  2323,  2323a,  2323b,  2336a, 

2324. 

2323.  [Am'd,  1895.]  Application  for  committee;  by  -whom, 
made. 

An  application  for  the  appointment  of  such  a  committee  must  be  made  by  petition, 
which  may  be  presented  by  any  person.  Except  as  provided  in  the  next  section, 
where  the  application  is  made  to  the  Supreme  Court,  the  petition  must  be  presented 
at  a  Special  Term  held  within  the  judicial  district,  or  to  a  justice  of  said  court  within 
such  judicial  district  at  chambers  where  the  person  alleged  to  be  inco  mpetent  resides 
or  if  he  is  not  a  resident  of  the  State,  or  the  place  of  his  residence  cannot  be  ascer- 
tained, where  some  of  his  property  is  situated,  or  the  State  institution  is  situated  of 
which  he  is  an  inmate. 

L.  1895,  ch.  824. 

§  2323a.  [Added,  1895;  am'd,  1897.] 

Where  an  incompetent  person  has  been  committed  to  a  State  institution  in  any 
manner  provided  by  law  and  is  an  inmate  thereof,  the  petition  may  be  presented  on 
behalf  of  the  State  by  a  State  officer  having  special  jurisdiction  over  the  institution 
where  the  incompetent  person  is  confined  or  the  superintendent  or  acting  superin- 
tendent of  said  institution  ;  the  petition  must  be  in  writing  and  verified  by  the  affida- 
vit of  the  petitioner  or  his  attorney  to  the  effect  that  the  matters  therein  stated  are 
true  to  the  best  of  his  information  or  belief;  it  must  show  that  the  person  for  whose 
person  or  property,  or  both,  a  committee  is  asked  has  been  legally  committed  to  a 
State  institution  over  which  the  petitioner  has  special  jurisdiction,  or  of  which  he  is 
superintendent  or  acting  superintendent,  and  is  at  the  time  an  inmate  thereof;  it 
must  also  state  the  institution  in  which  he  is  an  inmate,  the  date  of  his  admission,  his 
last  known  place  of  residence,  the  name  and  residence  of  the  husband  or  wife,  if  any, 
of  such  person,  and  if  there  be  none,  the  name  and  residence  of  the  next  of  kin  of  such 
person  living  in  this  State  so  far  as  known  to  the  petitioner;  the  nature,  extent,  and 
income  of  his  property,  so  far  as  the  same  is  known  to  the  petitioner,  or  can  with  rea- 
sonable diligence  be  ascertained  by  him.  The  petition  may  be  presented  to  the  Su- 
preme Court  at  any  Special  Term  thereof  held  either  in  the  judicial  district  in  which 
such  incompetent  person  last  resided,  or  in  the  district  in  which  the  State  institutioa 


696  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  3.     Petition  and  Proceedings  Thereon. 

in  which  he  is  committed  is  situated,  or  to  a  justice  of  the  Supreme  Court  at  chambers 
w-ithin  such  judicial  district.  Notice  of  the  presentation  of  such  petition  shall  be  per- 
sonally given  to  such  person,  and  also  to  the  husband  or  wife,  if  any,  or  if  none,  to 
the  next  of  kin  named  in  the  petition,  and  to  the  officer  in  charge  of  the  institution 
in  which  such  person  is  an  inmate.  Upon  the  presentation  of  such  petition,  and  proof 
of  the  service  of  such  notice,  the  court  or  justice  may,  if  satisfied  of  the  truth  of  the 
facts  required  to  be  stated  in  such  petition,  immediately  appoint  a  committee  of  the 
person  or  property,  or  both,  of  such  incompetent  person,  or  may  require  any 
further  proof  which  it  or  he  may  deem  necessary  before  making  such  appointment. 
L.  1895,  ch.  824;  L.  1897,  ch.  149.     In  effect  April  i,  1897. 

§  2323b.     [Added,  1895.] 

Upon  the  presentation  of  a  petition  and  the  appointment  of  a  committee,  as  pro- 
vided in  section  two  thousand  three  hundred  and  twenty-three  (a),  the  court  or  justice 
may  award  costs  of  the  proceeding  not  exceeding  twenty-five  dollars,  in  addition  to 
necessary  disbursements,  to  the  petitioner,  payable  from  the  estate  of  the  incompetent 
person,  and  upon  denial  of  an  application  to  set  the  same  aside,  costs  as  of  a  motion. 

L.  1895,  ^^-  ^-4- 

§  2336a.     [Added,  1895.] 

Sections  two  thousand  three  hundred  and  twenty-five  to  two  thousand  three  hun- 
dred and  thirty-six,  both  inclusive,  of  this  title  shall  not  apply  to  applications  for  the 
appointment  of  a  committee  made  by  it  on  behalf  of  the  State  to  secure  reimburse- 
ment  in  whole  or  in  part,  for  maintenance  and  support  in  a  State  institution. 

L.  1895,  ch.  824. 

§  2324. 

Where  the  incompetent  person  has  property  which  may  be  endangered  in  conse- 
quence of  his  incompetency,  and  no  relative  or  other  person  applies  for  the  appoint- 
ment of  a  committee  of  his  property,  the  overseer  or  superintendent  of  the  poor  of 
the  town,  district,  county,  or  city  in  which  he  resides,  or,  where  there  is  no  such  offi- 
cer, the  officer  or  officers  performing  corresponding  functions  under  another  official 
title  must  apply  to  the  proper  court  for  the  appointment  of  such  a  committee.  The 
expenses  of  conducting  the  proceedings  thereupon  must  be  audited  and  allowed  in 
the  same  manner  as  other  official  expenses  of  those  officers  are  audited  and  allowed. 

2  R.  S.  52,  53,  §§  2-7  (2  Edm.  53). 

It  is  said  in  Hughes  v.  Jones,  1 16  N.  Y.  74,  "  Any  one,  even  a 
stranger,  can  petition  for  a  commission  to  examine  as  to  the 
sanity  of  another  person  within  the  jurisdiction  of  the  court. 
While  this  is  now  provided  by  statute,  it  was  also  the  rule  at 
common  law,  although  a  strong  case  was  required  if  the  applica- 
tion was  not  made  by  some  person  standing  in  a  near  relation  to 
the  supposed  lunatic." 

ARTICLE   III. 

Petition  and  Proceedings  Thereon.    §§  2325,  2326, 
2327,  2328,  2334. 

§  2325.  [Am'd,  1891.]  Contents,  etc.,  of  petition ;  proceedings 
upon  presentation  thereof. 

The  petition  must  be  in  writing,  and  verified  by  the  affidavit  of  the  petitioner,  or 


COMMITTEE   FOR   LUNATICS,  ETC.  697 


Art.  3.     Petition  and  Proceedings  Thereon. 


his  attorney,  to  the  effect  that  the  matters  of  fact  therein  stated  are  true.  It  must  be 
accompanied  with  proof,  by  affidavit,  that  the  case  is  one  of  those  specified  in  this 
title.  It  must  set  forth  the  names  and  residences  of  the  husband  or  wife,  if  any,  and 
of  the  next  of  kin  and  heirs,  of  the  person  alleged  to  be  incompetent,  as  far  as  the 
same  are  known  to  the  petitioner,  or  can,  with  reasonable  diligence,  be  ascertained  by 
him,  and  also  the  probable  value  of  the  property  possessed  and  owned  by  the  alleged 
incompetent  person,  and  what  property  has  been  conveyed  during  said  alleged  incom- 
petency and  to  whom,  and  its  value  and  what  consideration  was  paid  for  it,  if  any,  or 
was  agreed  to  be  paid.  The  court  must,  unless  sufficient  reasons  for  dispensing  there- 
with are  set  forth,  in  the  petition  or  accompanying  affidavit,  require  notice  of  the  pres- 
entation of  the  petition  to  be  given  to  the  husband  or  wife,  if  any,  or  to  one  or  more 
relatives  of  the  person  alleged  to  be  incompetent,  or  to  an  officer  specified  in  the  last 
section.  Where  notice  is  required,  it  may  be  given  in  any  manner,  which  the  court 
deems  proper;  and  for  that  purpose,  the  hearing  may  be  adjourned  to  a  subsequent 
day,  or  to  another  term,  at  which  the  petition  might  have  been  presented. 
L.  1891,  ch.  263. 

§  2326.  [Am'd,  1898. J  When  foreign  committee  may  be  ap- 
pointed. 

Where  the  person  alleged  to  be  incompetent  resides  without  the  State,  and  a  com- 
mittee, curator,  or  guardian  of  his  property,  by  whatever  name  such  officer  may  be 
designated,  has  been  duly  appointed  pursuant  to  the  laws  of  any  other  State,  territory, 
or  country  where  he  resides,  the  court  may,  in  its  discretion,  make  an  order  appointing 
the  foreign  committee,  curator,  or  guardian,  the  committee  of  all  or  of  a  particular 
portion  of  the  property  of  the  incompetent  person,  within  the  State,  on  his  giving 
such  security  for  the  discharge  of  his  trust  as  the  court  thinks  proper. 

L.  1898,  ch.  294.     In  effect  Sept.  i,  1898. 

§  2327.  [Am'd,  1895.]  Order  for  commission,  or  for  trial  by- 
jury  in  courts. 

Unless  an  order  is  made,  as  prescribed  in  the  last  section,  if  it  presumptively  ap- 
pears, to  the  satisfaction  of  the  court,  from  the  position  and  the  proofs  accompany- 
ing it,  that  the  case  is  one  of  those  specified  in  this  title  ;  and  that  a  committee 
ought,  in  the  exercise  of  a  sound  discretion,  to  be  appointed;  the  court  must  make  an 
order,  directing,  either 

1.  That  a  commission  issue,  as  prescribed  in  the  next  section,  to  one  or  more  fit 
persons,  designated  in  the  order ;  or 

2.  That  the  question  of  fact,  arising  upon  the  competency  of  the  person,  with  re- 
spect to  whom  the  petition  prays  for  the  appointment  of  a  committee,  be  tried  by  a 
jury,  at  a  trial  term  of  the  court. 

3.  When  it  satisfactorily  appears  from  the  petition  and  accompanying  affidavits  that 
any  person  or  persons  having  acquired  from  the  alleged  incompetent  person,  real  or 
personal  property  during  the  time  of  such  alleged  incompetency  without  adequate 
consideration,  the  court  may  issue  an  order,  with  or  without  security,  restraining  such 
person  or  persons  from  selling,  assigning,  disposing  of,  or  incumbering  said  property, 
or  confessing  judgment  which  shall  become  a  lien  upon  said  property,  during  the 
pendency  of  the  proceeding  for  the  appointment  of  a  committee,  and  said  order  may 
in  the  discretion  of  the  court  be  continued  for  ten  days  after  the  appointment  of  such 
committee.  Notice  of  the  execution  of  the  commission  shall  be  given  to  the  person 
or  persons  enjoined  in  such  manner  as  the  court  may  direct. 

L.  1895,  ch.  946. 


698  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  3.     Petition  and  Proceedings  Thereon. 

§  2328.  Contents  of  commission. 

The  commission  must  direct  the  commissioners  to  cause  the  sheriff  of  a  county, 
specified  therein,  to  procure  a  jury  ;  and  that  they  inquire,  by  the  jury,  into  the  matters 
set  forth  in  the  petition  ;  and  also  into  the  value  of  the  real  and  personal  property  of 
the  person  alleged  to  be  incompetent,  and  the  amount  of  his  income.  It  may  contain 
such  other  directions,  with  respect  to  the  subjects  of  inquiry,  or  the  manner  of  execut- 
ing the  commission,  as  the  court  directs  to  be  inserted  therein. 

§  2334.  [Am'd,  1895.]  Proceedings  upon  trial  by  jury  in  court. 

Where  an  order  is  made,  directing  the  trial  by  a  jury,  at  a  trial  term,  of  the  questions 
of  fact,  arising  upon  the  competency  of  the  person,  with  respect  to  whom  the  petition 
prays  for  the  appointment  of  a  committee,  the  order  must  state,  distinctly  and 
plainly,  the  questions  of  fact  to  be  tried ;  which  may  be  settled  as  where  an  order  for 
a  similar  trial  is  made  in  an  action.  The  court  may,  in  that  or  in  a  subsequent  order, 
direct  that  notice  of  the  trial  be  given  to  such  persons,  and  in  such  a  manner  as  it 
deemed  proper.  The  trial  must  be  reviewed  in  the  same  manner,  with  like  effect,  and, 
except  as  otherwise  directed  in  the  order,  the  proceedings  thereupon  are,  in  all  re- 
spects, the  same  as  where  questions  of  fact  are  tried,  pursuant  to  an  order  for  that 
purpose.  The  court  may  make  inquiry  by  means  of  a  reference  or  otherwise,  as  it 
thinks  proper,  with  respect  to  any  matter,  not  involved  in  the  questions  tried  by  the 
jury,  the  determination  of  which  is  necessary  in  the  course  of  the  proceedings.  The 
expenses  of  the  trial,  and  of  such  an  inquiry,  must  be  paid  by  the  petitioner. 

L.  1895,  ^h.  946. 

In  proceedings  instituted  for  the  purpose  of  inquiring  into  the 
sanity  of  a  citizen,  the  practice  is  to  present  to  the  court  a  veri- 
fied petition,  accompanied  by  affidavits  alleging  incompetency, 
by  reason  of  unsoundness  of  mind  to  manage  his  affairs,  of  the 
person  concerning  whose  sanity  an  investigation  is  sought,  and 
praying  the  appointment  of  a  committee  of  his  person  and  estate, 
and  a  commission  thereupon  issues.  Matter  of  CJiurch,  64  How. 
393.  A  statute  providing  for  an  adjudication  by  which  a  person 
shall  be  confined  in  an  inebriate  asylum  as  an  habitual  drunkard 
is  unconstitutional.  Matter  of  Janes,  30  How.  446.  It  is  within 
the  power  of  the  Supreme  Court  to  appoint  a  guardian  for  an 
idiot  or  lunatic  defendant  upon  application  for  that  purpose,  even 
though  no  inquisition  has  been  found.  Hunter  v.  Hatfield,  12 
Hun,  381.  It  is  not  necessary  to  accompany  the  petition  with 
the  affidavit  of  a  physician,  to  give  the  court  power  to  appoint 
a  commission,  although  in  cases  of  lunacy  it  is  usual  to  do  so. 
Matter  of  Zimmer,  15  Hun,  214.  But  a  committee  cannot  be  ap- 
pointed on  the  certificates  of  physicians;  there  must  be  an  in- 
quisition. Matter  of  Cor  lies,  I  l^diW!  ^nW.^g.  The  failure  of  the 
court  to  require  notice  of  an  application  for  the  appointment  of 
a  committee  for  a  lunatic  to  be  given,  where  sufficient  reasons  for 
dispensing  therewith  are  not  set  forth  in  the  moving  affidavit  or 


COMMITTEE   FOR   LUNATICS,  ETC.  699 


Art.  3.     Petition  and  Proceedings  Thereon. 


the  petition,  does  not  deprive  it  of  jurisdiction,  but  is  a  simple 
irregularity  which  may  be  cured  or  disregarded.  It  is  sufficient, 
if,  on  a  motion  made  by  an  alleged  lunatic  to  set  aside  the  order 
appointing  the  commission,  all  the  parties  interested  have  an  op- 
portunity to  be  heard.  Matter  of  Demelt,  27  Hun,  480;  Matter 
of  Rogers,  9  Abb.  N.  C.  141.  The  alleged  lunatic,  except  in  case 
of  confirmed  and  dangerous  madness,  is  entitled  to  reasonable 
notice  of  the  time  and  place  of  executing  the  commission,  and 
he  ought  to  be  produced  before  the  jury  for  their  inspection  and 
examination.  Ex  parte  Russell,  i  Barb.  Ch.  38;  Ex  parte  Tracy, 
I  Paige,  580.  After  the  return  of  an  inquisition  finding  sufficient 
facts,  it  is  too  late  to  question  the  allegations  of  the  petition. 
Ex  parte  Zimmcr,  15  Hun,  214. 

As  §  2325  requires  notice  of  the  presentation  of  the  petition 
to  be  given  to  the  husband  or  wife  of  the  person  proceeded 
against,  or  to  one  or  more  relatives  of  the  person,  etc.,  it  was 
held,  that  where  the  sheriff's  jury  found  a  person  an  habitual 
drunkard,  and  a  commission  was  issued,  that  all  the  proceedings 
except  the  filing  of  the  first  petition  should  be  set  aside  where 
notice  of  the  proceedings  was  not  served,  and  where  the  person 
was  not  represented  by  counsel.  Although  her  father  and 
brother  were  notified  to  attend  before  the  jury,  the  proceedings 
were  set  aside,  with  leave  to  the  petitioner  to  make  further  ap- 
plication on  the  petition.  In  re  Bennett,  5  Supp.  373.  But  it 
has  been  held  that  §  2325  does  not  require  notice  to  be  given  to 
the  relative  of  an  alleged  incompetent  person  when  the  applica- 
cation  for  the  appointment  of  the  committee  is  made  by  the 
husband  or  wife.       Matter  of  Parke,  15   Misc.  662. 

As  a  physician  is  prohibited  by  §  834,  Code  Civil  Procedure, 
from  disclosing  professional  information,  he  cannot  make  an 
affidavit  in  support  of  an  application  for  the  appointment  of  a 
committee  of  a  lunatic  or  habitual  drunkard.  It  seems  that 
although  the  petition  contains  a  positive  allegation  that  the 
person  is  an  habitual  drunkard,  this  proof  is  not  sufficient  but 
further  proof  must  appear  by  affidavit.  It  was  held  further  that 
an  affidavit  showing  intoxication  upon  one  occasion  affords  no 
proof  that  a  person  is  a  habitual  drunkard.  Matter  of  Hoag,  20 
Abb.  N.  C.  163.  For  a  statement  of  the  proceedings  upon  the 
presentation  of  the  petition,  see  Matter  of  Beach,  23  App.  Div. 
412.     A  sheriff's  jury  or  a  jury  at  a  trial  term   of  the  court  are 


700  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  3.     Petition  and  Proceedings  Thereon. 

the  proper  tribunals  to  try  questions  of  fact  as  to  incompetency, 
and  therefore  it  seems  that  where  there  is  a  question  as  to  in- 
competency, the  matter  should  not  be  decided  upon  afifidavits 
but  should  be  sent  to  the  tribunals  provided  for  by  the  law  for 
that  purpose  to  have  the  question  of  competency  fully  inquired 
into.  Matter  of  Beach,  21  App.  Div.  412.  The  committee  of  a 
lunatic,  appointed  abroad,  has  no  authority  over  his  property  in 
this  State.  Matter  of  Perkins,  2  Johns.  Ch.  124  ;  Matter  of  Petit, 
2  Paige,  174;  Matter  of  Ganse,  9  id.  416;  Matter  of  Neally,  26 
How.  402  ;  Matter  of  Traznier,  2  Redf.  171  ;  Welter  v.  Suggett,  3 
id.  249.  In  Matter  of  Colah,  6  Daly,  308,  the  court  refused  to 
turn  over  to  the  foreign  committee  of  the  lunatic  who  had  be- 
come insane  here  and  had  been  sent  home,  his  estate  here.  The 
present  section  is  new. 

Precedent  for  Affidavit  and  Petition — Affidavit. 

ULSTER  COUNTY  COURT. 


In  the  Matter  of  Corneha  DuBois,  a  Supposed 
Idiot. 


Ulster  County,   ss.  : 

Philip  A.  Ayers,  Festus  Stokes,  and  Daniel  Coddington,  each  of  the 
town  of  Marbletown,  said  county,  being  each  duly  sworn,  doth  each 
for  himself  depose  and  say,  that  he  lives  within  a  short  distance  of 
the  house  of  Cornelia  DuBois  in  said  town,  and  has  been  acquainted 
with  the  said  Cornelia  since  her  childhood.  That  said  Cornelia 
has  always  been  of  weak  mind,  and  her  mind  appears  to  weaken  as 
she  advances  in  years.  That  she  is  now  about  thirty-two  years  of 
age,  and  is  not  capable  of  doing  business  or  managing  her  affairs. 
That  she  cannot  read  or  write,  and  is  not  capable  of  speaking 
intelligently  or  connectedly.  That  she  has  to  be  aided  in  dressing 
and  undressing,  and  does  not,  unless  aided,  care  for  her  person. 
That  her  condition  is  such  that  it  affords  no  reasonable  hope  of  her 
ever  being  any  better.  PHILIP  A.    AYERS, 

DANIEL  CODDINGTON, 
Subscribed  and  sworn  to  be-    )  FESTUS  STOKES. 

fore  me,  April  2,  1887.  f 

THOMAS  SNYDER, 

fust  ice  of  the  Peace, 


COMMITTEE   FOR   LUNATICS,  ETC.  70I 


Art.  3.     Petition  and  Proceedings  Thereon. 


Petition  Incompetent  Person. 

ULSTER  COUNTY  COURT. 
-1 

In  the  Matter  of  Cornelia  DuBois,  a  Supposed  |^ 
Idiot. 


To  the  County  Court  of  Ulster  County  : 

The  petition  of  Hannah  DuBois,  of  the  town  of  Marbletown,  said 
county,  respectfully  shows  that  your  petitioner  is  the  widow  of  John 
H.  Dubois,  who  died  intestate  on  or  about  the  24th  day  of  October, 
1886,  and  that  your  petitioner  was  duly  appointed  the  admuiistratrix 
of  the  estate  of  her  said  husband  by  the  surrogate  of  the  county  of 
Ulster,  on  the  15th  day  of  November,  1886.     That  Cornelia  DuBois, 
the  supposed  idiot,  is  a  sister  of  the  deceased  husband  of  this  peti- 
tioner, and  became  of  the  age  of  thirty-two  years  on  or  about  the 
ist  day  of  June,  1886.     That  since  the  death  of  the  husband  of  this 
petitioner,  the  said  Cornelia  has  lived  and  made  her  home  with  this 
petitioner.     That  prior  to  that  time,  and  since  about  the  year  1857, 
the  said  Cornelia  has  lived  with  and  made  her  home  in  the  family  of 
the  late  husband  of  the  petitioner.     That  said  Cornelia  has  been  and 
is  a  resident  of  the  said  town   of  Marbletown.     That  said  Cornelia 
has  been  entirely  unfit  to  have  charge  of,  or  manage  her  business 
affairs  or  property  since  her  birth,    and  since  about  the  year  1882 
has  been  at  times,  and  frequently,  violent  and  dangerous  to  herself 
and  those  about  her.     That  the  said  Cornelia  DuBois  is  the  owner 
of  personal  property,  consisting  of  clothing  of  the  value  not  to  exceed 
the  sum  of  about  $20.      That  the  said  Cornelia  is  the  owner  of  certain 
real  property  of  the  value  of  about  $700,  and  which  consists  of  the 
undivided  one-third  of  the  following  property,  being  the  farm  in  said 
town  of  Marbletown,    lately  belonging  to  Wessel  L.  DuBois,   and 
purchased  by  him   from   Henry  O.  Lawrence,   deed  dated  March  7 
1856,  and  recorded  in   the  Ulster  County  clerk's  office,  m  book   of 
deeds  No.  95,  page  474,  March  8,  1856,  to  which  deed,  or  the  record 
thereof,  reference  is  hereby  made  for  a  full  and  particular  description 
of  said  property  ;  said  property  containing  in  all   some  ninety-four 
acres,  excepting,  however,  from  the  above,  about  half  an  acre  from 
the  ten-acre  lot  mentioned  in  said  deed  sold  to  Lewis  DuBois. 

That  this  petitioner  with  her  infant  children,  the  heirs  at  law  of 
her  late  husband,  are  the  owners  of  the  other  undivided  two--thirds 
of  said  property,  and  occupy  the  whole  thereof.  That  the  said  chil- 
dren of  this  petitioner  are  named,  aged,  and  reside  as  follows  : 

Hulda     DuBois,    nineteen    years,    residing   at    Marbletown,    said 

count  V. 

Rachel  DuBois,    seventeen   years,    residing  at  Marbletown,   said 

county. 

Sabina    DuBois,    twelve    years,     residing    at    Marbletown,    said 

county. 

That  the  said  Cornelia  DuBois  is  a  single  person,  has  never  been 
married,  her  father  and  mother  are  both  dead,  and  her  only  heirs  at 
law  and  next  of  kin  are  as  follows  : 


702  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  3.     Petition  and  Proceedings  Thereon. 

The  children  of  this  petitioner  being  the  heirs  at  law  and  the  children 
of  John  H.  DuBois,  deceased,  a  brother  of  said  Cornelia,  and  whose 
ages  and  places  of  residence  are  given  above.  Lewis  DuBois,  a 
brother  of  full  age,  residing  in  said  town  of  Marbletown. 

That  said  Cornelia  DuBois  has  never  had  any  committee  appointed 
of  her  person  or  estate. 

Wherefore  your  petitioner  prays  that  a  committee  of  the  person 
and  property  of  said  Cornelia  DuBois  be  appointed,  and  that  a  com- 
mission may  issue  out  and  under  the  seal  of  this  court  to  inquire  of 
the  apparent  idiocy  of  the  said  Cornelia  DuBois. 

HANNAH  Dubois. 

■{Add  verification  as  to  pteading.) 

Precedent  for  Petition  in  Case  of  Habitual  Drunkard. 

ULSTER  COUNTY  COURT. 


In  the  Matter  of  David  A.  Abeel,  a  Supposed 
Habhual  Drunkard. 


To  the  Comity  Court  of  Ulster  County  : 

The  petition  of  Mary  E.  Abeel,  of  Medina,  Orleans  County,  New 
York,  respectfully  shows  :  That  she  is  the  general  guardian  and 
maternal  aunt  of  the  children  of  David  A.  Abeel  ;  that  her  sister,  the 
mother  of  said  children,  is  dead,  and  said  David  A.  Abeel  has  since 
remarried. 

That  the  said  David  A.  Abeel,  who  resides  at  the  town  of  Sauger- 
ties,  county  of  Ulster,  now  is,  and  for  up^\'ards  of  two  years,  as  this 
petitioner  learns  from  diligent  inquiry  and  examination  in  the  neigh- 
borhood where  said  David  A.  Abeel  resides  and  has  for  several 
years  resided,  and  from  information  obtained  from  relatives  and 
friends  of  the  family  of  said  David  A.  Abeel,  as  well  as  from  personal 
acquaintance  and  observation,  an  habitual  drunkard,  and  by  his 
habitual  drunkenness  is  rendered  incapable  of  managing  his  affairs, 
and  in  consequence  thereof  is  wasting  his  property  and  liable  to  be 
defrauded  thereof,  if  allowed  to  exercise  control  over  it,  all  of  which 
will  more  fully  appear  by  the  affidavits  presented  with  the  petition 
on  this  application.  That  the  said  David  A.  Abeel  was  bequeathed 
and  devised,  by  his  mother,  lately  deceased,  personal  and  real 
property  of  considerable  value. 

That  the  personal  estate  to  which  he  is  entitled  under  the  will  of 
his  said  mother  will  be,  as  nearly  as  your  petitioner  can  estimate, 
about  the  sum  of  $10,000,  and  the  real  estate  so  devised,  in  the 
opinion  of  your  petitioner,  nearly  or  quite  the  same  value,  and  is 
situate  in  the  said  town  of  Saugerties,  in  the  county  of  Ulster,  and  in 
the  adjoining  town  of  Catskill,  in  the  county  of  Greene. 

That  Margaret  A.  Abeel  is  the  wife  of  said  David  A.  Abeel,  and 
resides  with^him.  That  his  family  consists  of  Francis  Groat  Abeel, 
Nelson  Edward  Abeel.  Harriet  H.  Abeel,  all  infants,  of  whom  your 
petitioner  is  general  guardian,  his  only  heirs  and  next  of  kin. 


COMMITTEE   FOR   LUNATICS,  ETC.  7OJ 


Art.  3.     Petition  and  Proceedings  Thereon. 


Wherefore  your  petitioner  prays  that  a  committee  of  the  property 
of  the  said  David  A.  Abeel  be  appointed,  and  that  a  commission  may 
issue  out  of  and  under  the  seal  of  this  court,  to  inquire  of  the 
apparent  habitual  drunkenness  of  the  said  David  A.  Abeel. 

Dated  March  17,   1884.  (Signature.) 

[Add  verification  as  to  pleading.^ 

Precedent  for  Affidavit. 


In  the  Matter  of  David  A.  Abeel,  a  Supposed 
Habitual  Drunkard. 


Ulster  County,  ss.  : 

Frederick  A.  Morrey  and  Thomas  N.  Garrey,  of  the  town  of  Sau- 
gerties,  being  each  duly  sworn,  say,  each  for  himself :  That  he  is 
well  acquainted  with  David  A.  Abeel  and  resides  in  the  same  neigh- 
borhood, and  has  known  him  for  many  years  ;  that  for  a  long  period 
of  time  he  has  been  in  the  habit  of  drinking  to  excess,  and  of  going 
on  sprees  lasting  for  a  considerable  time,  several  days  or  weeks, 
absenting  himself  from  home  during  the  time,  or  a  portion  thereof, 
and  spending  money  very  freely  ;  that  within  the  past  month,  or 
thereabouts,  he  has,  on  two  different  occasions,  indulged  in 
prolonged  sprees,  frequenting  hotels  and  taverns,  and  was,  a  short 
time  since,  as  these  deponents  are  informed  and  believe,  ejected 
from  a  bar-room  on  account  of  intoxication  ;  that  while  under  the 
influence  of  liquor  he  is  entirely  incapable  of  caring  for  himself  and 
liable  to  be  imposed  upon  ;  that  on  one  occasion  shortly  after  his 
mother's  death,  one  Martin  Wheeler  took  for  safekeeping  from  said 
Abeel  the  sum  of  |ioo,  which  he  afterward  returned  to  him,  said 
Abeel  being  unaware  of  what  had  become  of  the  same  ;  that  he  had 
at  that  time  obtained  some  $500  by  sale  or  pledge  of  bank  stock 
from  his  mother's  estate  ;  that  by  reason  of  such  habitual  drunken- 
ness he  is  incapable  of  managing  himself  or  his  affairs,  and  is  likely 
to  waste  his  property  and  to  be  defrauded  thereof  by  reason  of  his 
intoxication. 

{Jurat.)  (Signatures.) 

Notice  to  persons  interested  as  required  by  12323a  and  §  2325 
must  not  be  overlooked. 

Precedent  for  Order  for  Commission. 

At  a  special  term  of  the,  etc. 
(Title  as  above.) 

On  reading  and  filing  the  petition  of  Mary  E.  Abeel,  and  the  affi- 
davits of  Frederick  Lasher  and  Thomas  Garrey,  all  verified  on  the 
ist  day  of  May,  1884,  and  proof  of  service  thereof  on  David  E. 
Abeel,  the  supposed  habitual  drunkard,  and  on  Margaret  A.  Abeel, 
his  wife,  and  the  affidavits  of  David  E.  Abeel,  Nelson  Garrison,  and 


704  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.   3.     Petition  and  Proceedings  Thereon. 

Maria  Garrison,  in   opposition   to  the  application   for  an   order  for  a 
commission  : 

Now,  after  hearing  E.  B.  Wallver,  Esq.,  attorney  for  the  petitioner, 
and  John  W.  Searing,  Esq.,  on  behalf  of  said  David  E.  Abeel,  opposed, 
it  is  ordered  that  a  commission,  in  the  nature  of  a  writ  de  lunaiico 
inquirendo,  be  issued  out  of  and  under  the  seal  of  this  court,  in  the 
usual  form,  directed  to  S.  T.  Hull,  Esq.,  counsellor-at-law,  Elbert 
H.  Loughran,  physician,  and  Amasa  Humphrey,  banker,  all  of  the 
city  of  Kingston,  in  the  county  of  Ulster,  to  mquire  by  a  jury  of  said 
county  whether  the  said  David  E.  Abeel  is  an  habitual  drunkard,  and 
incapable  of  managing  his  property,  and  that  the  sheriff  of  said 
county  be  instructed  in  said  commission  to  summon  a  jury  in  the 
manner  required  by  law. 

It  is  further  ordered  that  said  commission  be  executed  in  the  town 
of  Saugerties,  where  the  said  David  E.  Abeel  resides,  and  that 
previous  notice  of  the  time  and  place  of  such  execution  be  given  said 
David  E.  Abeel,  to  his  wife,  and  to  his  counsel,  John  W.  Searing, 
Esq.,  at  least  ten  days  before  the  date  thereof. 

It  is  further  ordered  that  said  David  E.  Abeel  appear  before  said 
commission  for  examination  before  them. 

SAMUEL  EDWARDS, 

Juslice  Supreme  Court. 

Precedent  for  Commission. 

Tlie  People  of  the  State  of  New  York  to  Charles  O.  Sahler,  of  the 
County  of  Ulster,  greeting: 

Know  ye  that  we  have  assigned  to  you  to  inquire,  by  the  oath  of 
good  and  lawful  men  of  the  county  of  Ulster,  by  whom  the  truth  of 
the  matter  may  be  better  known,  whether  Cornelia  DuBois,  of  the 
town  of  Marbletown,  in  the  county  of  Ulster,  is  an  idiot,  with  or 
without  lucid  intervals,  by  reason  of  which  infirmity  she  is  incapable 
of  governing  herself  or  of  managing  her  affairs  or  property,  or  prop- 
erly caring  for  her  lands,  tenements,  goods,  and  chattels,  and  if  so, 
from  what  time  such  infirmity  dates,  and  in  what  manner  and  how 
such  infirmity  has  manifested  itself,  and  whether,  while  in  such  con- 
dition, the  said  Cornelia  DuBois  has  alienated  any  lands  and  tene- 
ments, and  if  so  to  what  person  or  persons,  when,  where,  and  after 
what  manner;  and  also  what  lands,  tenements,  goods,  and  chattels 
are  yet  remaining  to  her,  and  of  what  value  the  lands  and  tene- 
ments alienated  by  her  are,  as  well  as  the  value  of  the  lands  and 
tenements,  goods  and  chattclsJ^by  her  maintained,  and  what  the 
issues  and  profits  thereof  amount  to  by  the  year,  and  the  value  of 
all  her  real  and  personal  estate,  and  who  are  the  nearest  heirs  and 
next  of  kin  of  the  said  Cornelia  DuBois,  and  who  would  be  entitled 
to  her  estate  in  case  of  her  death,  and  the  age  of  each. 

Wherefore  we  command  you  that  you  cause  the  sheriff  of  the 
county  of  Ulster  to  procure  a  jury,  and  that  you  inquire  by  the  jury 
into  the  matters  set  forth  in  the  petition  in  this  proceednig,  filed  by 
Hannah  DuBois,  the  6th  day  of  April,  1887,  and  also  that  you  in- 
(juirc  into  the  value  of  the  real  estate  and  personal  property  of  the 


COMMITTEE   FOR   LUNATICS,  ETC.  705 

Art.  3.     Petition  and  Proceedings  Thereon. 

said  Cornelia  DuBois,  and  the  amount  of  her  income  therefrom,  and 
the  other  matters  above  stated. 

And  that  you  appoint  such  day  and  place,  or  days  and  places,  for 
the  purpose  of  holding-  such  inquisition  as  may  be  convenient  ;  and 
that  you  give  reasonable  notice  of  the  time  and  place  of  the  execu- 
tion of  this  commission,  to  said  Cornelia  DuBois,  Hannah  DuBois, 
and  Lew^is  DuBois,  a  brother^of  said  Cornelia  ;  and  that  you  report 
the  inquisition  which  you  shall  thereupon  make  under  the  hands  and 
seals  of  yourselves,  or  a  majority  of  you,  together  with  those  of  the 
persons  by  whom  it  shall  be  made,  distinctly  and  plainly,  and  with- 
out delay  to  our  court,  together  with  this  writ. 

Witness,    Hon.  William   S.    Kenyon,    county    judge  of  Ulster 
[l.  s.]      County,  at  his  chambers  in  the  city  of  Kingston,  said  county, 
this  1 8th  day  of  April,  1887. 

WILLIAM  S.  KENYON, 

Ulster  County  Judge. 
V.  B.  VAN  WAGONEN,  JACOB  D.  WURTS, 

Aii'jy  for  Petitioner,  Kingston,  N.  Y.  Clerk  of  said  Court. 

Order  Where  Trial  is  by  Jury  under  Section  2327. 

At  a  term  of  the  Ulster  County,  etc. 

In  the  Matter  of  Henrietta  DuBois,  a  ! 

Supposed  Lunatic.  j 


On  reading  and  filing  the  petition  of  Henry  Ayers,  and  affidavits 
of  Martin  Johnson  and  Henry  Bogardus,  a  physician,  showing  that 
Henrietta  DuBois  is  a  lunatic  and  incompetent  to  manage  her  affairs  ; 
and  due  proof  service  thereof  having  been  made  on  said  lunatic, 
and  on  her  father;  and  after  hearing  D.  W.  Ostrander,  Esq.,  for  the 
application,  and  A.  D.  Lent,  Esq.,  opposed,  it  is  ordered  that  the 
question  of  fact  arising  upon  the  competency  of  said  Henrietta 
DuBois  be  tried  at  a  trial  term  of  this  court,  pursuant  to  the  pro- 
visions of  §  2334  of  the  Code  of  Civil  Procedure,  and  that  the  ques- 
tion of  fact  to  be  determined  thereon  is  whether  the  said  Henrietta 
DuBois,  mentally,  is  capable  of  governing  either  herself  or  her  affairs. 
It  is  further  ordered,  that  the  usual  notice  of  trial  be  given  in  the  usual 
manner  to  the  said  lunatic,  to  her  father,  Henry  DuBois,  and  to  her 
attorney,  A.  D.  Lent,  Esq.  WM.  S.  KENYON, 

County  Judge  of  Ulster  County. 

Questions  of  practice  relating  to  regularity  of  proceedings 
upon  execution  of  commission  cannot  be  reviewed  collaterally. 
VanDeiisen  v.  Sweet,  5  i  N.  Y.  378. 

A  motion  on  behalf  of  a  lunatic  for  a  new  trial  will  be  denied 
where,  upon  a  consideration  of  the  evidence  and  rulings,  the 
court  is  satisfied  that  there  is  no  doubt  as  to  the  lunacy  of  the 
alleged  incompetent.  Matter  of  Williams,  24  App.  Div.  248. 
It  is  unusual  that  affidavits  and  proof  on  behalf  of  the  person 
45 


7o6  COMMITTEE   FOR   LUNATICS,  ETC. 


Art.  4.     Hearing  Before  Commissioners. 


alleged  to  be  incompetent,  should  be  used  in  determining  the 
question  of  such  incompetency  upon  motion.  Such  question 
should  be  tried  either  before  a  sheriff's  jury  or  before  a  jury  at  a 
trial  term  of  the  court.  The  court  in  this  case  says  :  "  It  is  un- 
necessary nor  would  it  be  proper  to  determine  that  upon  this 
record  there  is  exhibited  a  case  of  incompetence  such  as  would 
justify  the  appointment  of  a  commissioner  .  .  .  but  we  think  it 
the  duty  of  the  court,  if  it  presumably  appears  from  the  petition 
and  the  proof  accompanying  it,  that  the  person  proceeded  against 
is  a  person  incompetent  to  manage  himself  or  his  affairs,  to  order 
an  investigation  as  to  whether  or  not  such  incompetency  exists  ; 
and  that  this  was  a  case  which  required  an  investigation  before  a 
tribunal  provided  by  law  for  that  purpose."  Matter  of  Beach,  23 
App.  Div.  412. 

ARTICLE  IV. 

Hearing  Before  Commissioners.    §§  2329,  2330,  2331,  2332,. 

2333,  2335. 

§  2329.  Commissioners  to  be  sworn ;  vacancies,  how  filled. 

Each  commissioner,  before  entering  upon  tlie  execution  of  his  duties,  must  sub- 
scribe and  take,  before  one  of  the  officers  specified  in  §  842  of  this  act,  and  file  with 
the  clerk,  an  oath,  faithfully,  honestly,  and  impartially  to  discharge  the  trust  commit- 
ted to  him.  If  a  commissioner  becomes  incompetent,  or  neglects  or  refuses  to  serve, 
or  removes  from  the  State,  the  court  may  remove  him.  The  court  may,  from  time  to 
time,  fill  any  vacancy  created  by  death,  removal,  or  resignation. 

§  2330.  [Am'd,  1895. J  Jury  to  be  procured;  proceedings 
thereupon. 

The  commissioners,  or  a  majority  of  them,  must  immediately  issue  a  precept  to  the 
sheriff  designated  in  the  commission,  requiring  him  to  notify  not  less  than  twelve  nor 
more  than  twenty-four  indifferent  persons,  qualified  to  serve,  and  not  exempt  from 
serving,  as  trial  jurors  in  the  same  court,  to  appear  before  the  commissioners  at  a 
specified  time  and  place  within  the  county,  to  make  inquiry  as  commanded  by  the 
commission.  The  sheriff  must  notify  the  jurors  accordingly,  and  must  return  the  pre- 
cept and  the  names  of  the  persons  notified  to  the  commissioners  at  the  time  and  place 
specified  in  the  precept.  The  commissioners,  or  a  majority  of  them,  must  determine  a 
challenge  made  to  a  juror.  Upon  the  failure  to  attend  of  a  person  who  has  been  duly 
notified,  his  attendance  may  be  compelled ;  and  he  may  be  punished  by  the  court  for 
a  contempt  as  where  a  juror,  duly  notified,  fails  to  attend  at  a  trial  term  of  the  court. 
The  commissioners  may  require  the  sheriff  to  cause  a  talesman  to  attend  in  place  of 
a  juror  notified  and  not  attending,  or  who  is  excused  or  discharged;  or  they  may  ad- 
journ the  proceedings  for  the  purpose  of  punishing  the  defaulting  juror  or  compelling 
his  attendance.  But  it  is  not  necessary  to  cause  any  talesman  to  attend  if  at  least 
twelve  of  the  persons  notified  by  the  sheriff  appear  and  are  sworn. 

L.  1895,  ch.  946. 


COMMITTEE   FOR   LUNATICS,    ETC.  707 

Art.  4.     Hearing  Before  Commissioners. 

§  2331.  Proceedings  upon  hearing. 

All  the  commissioners  must  attend  and  preside  at  the  hearing ;  and  they,  or  a  ma- 
jority of  them,  have,  with  respect  to  the  proceedings  upon  the  hearing,  all  the  power 
and  authority  of  a  judge  of  the  court  holding  a  trial  term,  subject  to  the  directions 
contained  in  the  commission.  Either  of  the  commissioners  may  administer  the  usual 
oath  to  the  jurors.  At  least  twelve  jurors  must  concur  in  a  finding.  If  twelve  do  not 
concur,  the  jurors  must  report  their  disagreement  to  the  commissioners,  who  must 
thereupon  discharge  them  and  issue  a  new  precept  to  the  sheriff  to  procure  another 
jury. 

§  2832.  Return  of  inquisition  and  commission. 

The  inquisition  must  be  signed  by  the  jurors  concurring  therein  and  by  the  com- 
missioners, or  a  majority  of  them,  and  annexed  to  the  commission.  The  com- 
mission and  inquisition  must  be  returned  by  the  commissioners  and  filed  with  the 
clerk. 

§  2333.  Expenses  of  commission. 

The  commissioners  are  entitled  to  such  compensation  for  their  services  as  the  court 
directs.  The  jurors  are  entitled  to  the  same  compensation  as  jurors  upon  the  trial  of 
an  issue  in  an  action  in  the  same  court.  The  petitioner  must  pay  the  compensation 
of  the  commissioners,  sheriff,  and  jurors. 

§  2335.     [Am'd,  1895.]     Subject  of  inquiry  in  cases  of  lunacy. 

Where  the  petitioner  alleges  that  the  person  with  respect  to  whom  it  prays  for  the 
appointment  of  a  committee  is  incompetent  by  reason  of  lunacy,  the  inquiry  with  re- 
spect to  his  competency  upon  the  execution  of  a  commission,  or  the  trial  at  a  trial 
term,  as  prescribed  in  this  title,  must  be  confined  to  the  question  whether  he  is  so  in- 
competent at  the  time  of  the  inquiry  ;  and  testimony  respecting  anything  said  or  done 
by  him,  or  his  demeanor  or  state  of  mind  more  than  two  years  before  the  hearing  or 
trial,  shall  nor  be  received  as  proof  of  lunacy,  unless  the  court  otherwise  specially 
directs  in  the  order  granting  the  commission  or  directing  the  trial  by  jury. 

L.  1874,  ch.  446,  §  2,  am'<l ;  L.  1895,  ^^-  94^- 

Oath  of  Commissioners. 

(Title. ) 
Ulster  County,  ss.  : 

Samuel  T.  Hull,  Elbert  H.  Loughran,  and  Amasa  Humphrey,  be- 
ing each  duly  sworn,  says  each  for  himself,  that  he  will  faithfully, 
honestly,  and  impartially  discharg-e  the  duty  of  commissioner  in 
the  above-entitled  matter  under  the  order  made  herein  by  the 
Supreme  Court. 

(/ura/.)  (Signatures.) 

Notice   of   Time  and  Place  of  Hearing. 

To   David  E.   Abeel,  Margaret    A.    Abeel,    his  wife,   and   John  W. 
Searing,  Esq.,  his  attorney  : 
Please  take  notice  that  a  commission,  heretofore  issued,  out  of  and 
by  order  of  the  Supreme  Court,  to  inquire  into  the  habitual  drunken- 
ness of  David  E.  Abeel,  will  be  executed  at  the  hotel  of  Martin  Man- 


yoS  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  4.     Hearing  Before  Commissioners. 

ning,  in   the   town  of  Saugerties,   in   the  county   of  Ulster,   at   ten 
o'clock  in  the  forenoon  of  the  12th  day  of  June  next. 
Dated  May  10,  1887.  S.  T.  HULL, 

E.  H.  LOUGHRAN, 
AMASA  HUMPHREY, 

Committee. 

Notice  to  Sheriff  to  Summon  Jurors. 

To  the  Sheriff  of  the  Cou7ity  of  Ulster,  greeting  : 

Whereas,  A  commission  has  issued  out  of  the  Supreme  Court  to 
us,  the  undersigned,  as  commissioners  to  inquire  as  to  whether 
David  E.  Abeel,  of  the  town  of  Saugerties,  in  the  county  of  Ulster, 
is  an  habitual  drunkard  :  Now,  therefore,  by  virtue  of  such  commis- 
sion, bearing  date  the  ist  day  of  May,  1884,  we  require  you  to 
notify  not  less  than  twelve  nor  more  than  twenty-four  indifferent 
persons,  qualified  to  serve,  and  not  exempt  from  serving,  as  trial 
jurors  in  the  Supreme  Court,  to  appear  before  us,  at  the  hotel  of 
Martin  Manning,  in  the  town  of  Saugerties,  on  the  12th  day  of  June, 
1884,  at  ten  o'clock  in  the  forenoon,  then  and  there  to  inquire  on 
their  oaths,  of  the  habitual  drunkenness  of  the  said  David  E.  Abeel, 
and  of  all  such  matters  and  things  as  shall  be  given  in  charge,  by 
virtue  of  said  commission  ;   thereof,  fail  not  at  your  peril. 

Given  under  our  hands  and  seals  this  ist  day  of  June,  1887. 

(Signatures  of  commissioners.) 

Indorsed  by  sheriff: — "The  following-named  jurors  have  been 
summoned  to  inquire  into  the  matters  set  forth  in  the  within  precept, 
according  to  the  tenor  thereof." 

The  commissioners  have  no  right  to  dictate  to  the  sheriff  what 
jurors  shall  be  summoned.  Matter  of  Wager,  6  Paige,  11.  In 
proceedings  for  the  appointment  of  committee  for  incompeient 
persons,  the  contesting  parties  upon  a  hearing  before  commis- 
sioners should  be  allowed  to  challenge  jurors  in  accordance  with 
the  ordinary  practice  of  obtaining  an  impartial  jury  ;  and  a  person 
ought  not  to  be  allowed  to  sit  as  a  juror  who  states  that  he  has 
formed  an  opinion  relative  to  the  inquiry,  and  that  it  would  re- 
quire some  evidence  to  overcome  it.  Matter  of  Klock,  19  St.  Rep. 
309,  3  Supp.  479.  In  proceedings  for  an  appointment  of  a  com- 
mittee for  a  lunatic,  the  supposed  lunatic  may  appear  and  testify 
before  a  jury;  so,  too,  the  counsel  for  the  lunatic  may  sum  up 
before  the  jury  and  the  jury  may  make  recommendations  in  its 
verdict.  Matter  of  Dickie,  7  Abb.  N.  C.  420.  The  jury  should 
inspect  the  alleged  lunatic  when  possible.  Matter  of  Rjissell,  i 
Barb.  Ch.  38.  And  a  refusal  to  permit  counsel  for  lunatic  to  sum 
up  is  error  and  vitiates  the  proceedings.  Matt:rof  Church,  6^ 
How.  393.     All  the  jurors  who  are  sworn  and  commence  should 


COMMITTEE   FOR    LUNATICS,  ETC.  709 

Art.  4.     Hearing  Before  Commissioners. 


sit  during  the  entire  proceeding.  Teboiif s  Case,  <^  K\:)h.  2l\.  A 
majority  of  the  commissioners  appointed  must  decide  every 
question  arising  upon  the  examination  of  the  commission.  The 
sheriff  should  not  be  present  at  dehberations  of  jury.  Matter  of 
ArnJioiit,  I  Paige,  497.  The  inquiry  must  be  confined  to  the  time 
when  the  inquisition  is  taken,  unless  otherwise  provided  in  the 
order,  and  a  finding  that  the  incapacity  has  existed  for  a  given 
period  of  time  is  illegal  and  improper,  and  will  be  stricken  out  on 
appeal.     Matter  of  Demelt,  27  Hun,  480. 

Form  of  Oath  to  Juror. 

You  do  solemnly  swear  well  and  truly  to  inquire  touching-  the 
idiocy  of  Cornelia' DuBois,  and  of  all  such  matters  and  things  as 
shallbe  given  to  you  in  charge  by  virtue  of  a  commission  issued 
out  of  and  under  the  seal  of  the  county  court,  and  now  here  to  be 
executed  and  a  true  inquisition  make,  according  to  the  evidence. 
So  help  you  God. 

In  Matter  of  Mason,  i  Barb.  436,  it  is  held  that  the  form  of  the 
return  to  the  inquisition  is  only  important  so  far  as  to  satisfy  the 
conscience  of  the  court.  If  enough  appears  upon  the  inquisition 
to  enable  the  court  to  adjudge  the  party  to  be  within  one  of  the 
classes  of  persons  over  whom  the  statute  has  given  it  jurisdiction, 
it  is  sufficient. 

Inquisition. 

An  inquisition  taken  at  the  hotel  of  John  B.  Krom,  in  the  village 
of  High  Falls,  in  the  county  of  Ulster,  on  the  14th  day  of  May,  1887, 
before  Charles  O.  Sahler,  sole  commissioner,  appointed  by  virtue  of 
a  commission  in  the  nature  of  a  writ  de  liinatico  inquirendo,  issued 
out  of  and  under  the  seal  of  the  court  of  Ulster  County,  and  dated 
April  18,  1887,  directed  to  the  said  commissioners,  to  inquire,  among 
other  things,  of  the  idiocy  of  Cornelia  DuBois,  upon  the  oaths  of 
Israel  Snyder,  John  C.  Sutton,  Isaac  Hasbrouck,  Charles  Harden- 
burgh,  Simon  R.  Keator,  William  O.  Church,  Thomas  Buckley, 
Richard  S.  Carney,  Wessel  B.  Stokes,  Thomas  Snyder,  Charles 
Rickert  and  Jacob  L.  Snyder,  good  and  lawful  men,  who  are  indif- 
ferent persons  qualified  to  serve  and  not  exempt  from  serving  as  trial 
jurors  in  said  county  court,  who,  being  summoned,  duly  sworn  and 
charged,  upon  their  oaths,  say  : 

That  the  said  Cornelia  DuBois  is  an  idiot,  without  lucid  intervals, 
and  by  reason  of  such  infirmity  she  is  not  capable  of  governing  her- 
self, or  of  managing  her  affairs  or  property,  or  properly  taking  care 
of  her  affairs,  lands,  tenements,  goods,  and  chattels,  and  that  such 
infirmity  dates  from  about  the  year  i860,  and  that  infirmity  manifests 
itself  in  weakness  of  mind,  neglect  of  her  person,  and  at  times  in 


7IO  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  4.     Hearing  Before  Commissioners. 

violent  conduct.  That  so  far  as  brought  to  the  knowledge  of  this 
commission  and  jury,  the  said  Cornelia  DuBois  has  not  aliened  any 
lands  or  property.  That  the  value  of  the  personal  property  of  the 
said  Cornelia  DuBois,  consisting  of  her  personal  clothing,  does  not 
exceed  the  sum  of  $20. 

That  the  real  property  of  the  said  Cornelia  consists  of  an  undivided 
one-third  of  a  certain  farm  in  said  town  of  Marbletown,  belonging 
to  Wessel  L.  DuBois.  in  his  lifetime,  consisting  of  about  ninety-two 
acres,  which  interest  she  inherited  on  the  death  of  the  said  Wessel, 
and  said  interest  is  of  the  value  of  about  $650.  That  such  interest 
in  said  real  estate  and  personal  property  produces  an  income,  and 
the  rents,  issues,  and  profits  thereof  is  of  the  annual  value  of  $30. 

That  the  said  Cornelia  DuBois  is  unmarried,  and  her  heirs  at  law 
and  next  of  kin.  and  the  persons  who  would  be  entitled  to  her 
estate  in  case  of  her  death  are  named,  related,  and  aged  as  follows  : 
(Here  insert  name  of  same,  relationship,  age,  and  interest  in  same.) 

In  testimony  whereof,  as  well  the  said  commissioner  as  the  jurors 
aforesaid,  have  to  this  inquisition  set  their  hands  and  seals  the  day 
and  year  first  above  written. 

C.  O.  SAHT.ER,  M.  D., 

So/e  Conunissioner.      [l.  s.  ] 

(All  the  jurors'  signatures  and  their  seals.) 

An  inquisition  will  be  set  aside  as  irregular  where  not  signed 
by  the  jury.  Matter  of  Mason,  51  Hun,  140.  Jurors  on  an  in- 
quisition of  insanity  are  entitled  to  only  25  cents  as  compensation 
and  are  not  entitled  to  a  per  diem  for  each  day  served  by  them. 
In  re  Sanford,  15  Supp.  291.  Section  2333  indicates  clearly  that 
the  legislature  intended  that  a  juror  should  receive  only  the  same 
compensation  that  a  juror  would  be  entitled  to  for  serving  as  such 
in  a  court  of  record  in  a  case  in  which  he  was  impanelled  ;  while 
the  word  "  compensation  "  is  used  in  §  2333,  the  word  "  fee  "  is 
used  in  §  3313.  The  provision  of  §  2333  is  not  that  jurors  are 
entitled  to  the  same  compensation  as  persons  attending  the  same 
court  to  serve  as  jurors,  but  is  limited  to  the  same  compensation 
as  jurors  upon  the  trial  of  an  issue  in  an  action  in  the  same  court ; 
therefore  the  compensation  of  jurors  in  this  proceeding  are  25 
cents  each.  Matter  of  Sand  ford,  61  Hun,  34,  39  St.  Rep.  809. 
By  §  2333  commissioners  are  entitled  to  such  compensation  as  the 
court  directs  and  jurors  are  entitled  to  the  same  fees  as  upon  the 
trial  of  an  issue  in  an  action.  The  fees  of  the  commissioners,  the 
sheriff,  and  the  jurors  are  a  proper  charge  against  the  estate  of  a 
deceased  lunatic,  notwithstanding  his  death  before  the  confirma- 
tion of  the  inquisition.     Matter  of  Loft  house,  3  Apj).  Div.  139. 

Prior  to  the  enactment    of   g  2335    the   jury  were  at  liberty  to 


COMMITTEE   FOR   LUNATICS,  ETC.  /I  I 

Art.  5.     Proceedings  on  Return  of  Commission. 

inquire  and  return  a  statement  of  the  intercedent  period  over 
which  the  lunacy  had  extended,  but  now  the  investigation  is 
confined  to  the  question  of  incompetency  at  the  time  of  inquiry, 
and  to  permit  an  intelligent  determination  of  this  question,  evi- 
dence is  allowed  to  be  given  as  to  the  demeanor  and  state  of 
mind  of  the  person  for  not  more  than  two  years  prior  to  the  hear- 
ing, unless  the  court  shall  otherwise  specially  direct.  Doniinick 
v.  Dominick,  10  St.  Rep.  33,  20  Abb.  N.  C.  287.  An  adjudi- 
cation that  lunacy  existed  more  than  two  years  prior  to  the  date 
of  the  inquisition  is  unauthorized,  and  the  adjudication  must  be 
limited  to  the  fact  as  it  exists  at  the  time  of  inquiry.  And  thus 
an  inquisition  finding  that  lunacy  existed  previous  to  the  date 
of  inquisition  will  be  modified  by  denying  confirmation  respec- 
ing  the  time  prior  to  the  inquisition,  but  such  inquest  may  be 
confirmed  in  so  far  as  it  is  legal.  In  re  Cook,  6  Supp.  720.  An 
order  of  confirmation  will  be  reversed  so  far  as  it  relates  to  the 
mental  capacity  of  a  lunatic  prior  to  the  date  of  the  inquest,  and 
the  finding  on  that  subject  contained  in  the  inquisition  stricken 
out  as  unwarranted,  but  in  other  respects  the  order  may  be  af- 
firmed,    hi  re  Sanford,  8  Supp.  940. 

ARTICLE  V. 

Proceedings  on  Return  of  Commission.    §§  2336,  2337. 

§  2336.  Proceedings  upon  verdict,  or  return  of  commission. 

Upon  the  return  of  the  commission,  with  the  inquisition  taken  thereunder,  or  the 
rendering  of  the  verdict  of  the  jury,  upon  the  question  submitted  to  it  by  the  order 
for  a  trial  by  a  jury,  the  court  must  either  direct  a  new  trial  or  hearing,  or  make  such 
a  final  order  upon  the  petition  as  justice  requires.  Where  a  final  order  is  made,  dis- 
missing a  petition,  the  court  may,  in  it  discretion,  award  in  the  order  a  fixed  sum  as 
costs,  not  exceeding  fifty  dollars  and  disbursements,  to  be  paid  by  the  petitioner  to 
the  adverse  party.  Where  a  committee  of  the  property  is  appointed,  the  court  must 
direct  the  payment  by  him,  out  of  the  funds  in  his  hands,  of  the  necessary  disburse- 
ments of  the  petitioner,  and  of  such  a  sum,  for  his  costs  and  counsel  fees,  as  it 
thinks  reasonable,  and  it  may,  in  its  discretion,  direct  the  committee  to  pay  a  sum, 
not  exceeding  fifty  dollars  and  disbursements,  to  the  attorney  for  any  adverse  party. 

§2337.     [Am'd,  1887.]     Security  to  be  given  by  committee. 

The  provisions  of  article  first  of  title  seven,  and  section  two  thousand  five  hundred 
and  ninety-five  of  article  fifth  of  title  second,  chapter  eighteenth  of  this  act,  respecting 
the  security  to  be  given  by  the  guardian  of  the  person  or  of  the  property  of  an  infant, 
appointed  by  a  surrogate's  court,  apply  to  a  committee  of  the  person  or  of  the  prop- 
erty, appointed  as  prescribed  in  this  article.  A  committee  of  the  property  cannot 
enter  upon  the  execution  of  his  duties,  until  security  is  given,  as  prescribed  by  the 


712  COMMITTEE   FOR   LUNATICS,  ETC. 


Art.  5.     Proceedings  on  Return  of  Commission. 


court.     A  committee  of  the  person  cannot  enter  upon  the  execution  of  his  duties,  until 
security  is  given,  if  required  by  the  court. 
L.  1887,  ch.  681  ;  see  §§  2829,  2831. 

The  court  is  not  restricted  in  its  power  to  grant  a  new  trial 
only  to  cases  where  a  proper  inquisition  has  been  returned,  and 
thus  an  inquisition  will  be  set  aside  for  irregularity  or  where  the 
facts  do  not  justify  the  finding  of  the  jury.  Matter  of  Mason, 
51  Hun,  140,  4  Supp.  662.  The  court  has  power  to  grant  a  new 
trial,  and  an  order  directing  such  new  trial,  after  a  verdict  in 
favor  of  the  lunatic,  will  not  be  reversed  on  appeal  when  the 
evidence  is  conflicting.  In  re  Abby,  6  Supp.  437.  In  a  very 
clear  case  of  mistake  or  prejudice  of  a  jury,  the  court  may  dis- 
charge the  inquisition  on  the  mere  examination  of  the  supposed 
lunatic,  in  connection  with  the  evidence  produced  before  the 
jury,  but  it  is  improper  to  do  so  on  ex  parte  affidavits,  contradict- 
ing the  finding,  with  no  excuse  for  not  having  produced  the  de- 
ponents  before  the  jury  as  witnesses.  Matter  of  Russell,  i  Barb. 
Ch.  38.  The  finding  and  confirmation  of  an  inquisition  should 
not  be  set  aside  for  mere  irregularity  where  there  is  no  room 
whatever  for  doubt  of  the  lunacy.  Matter  of  Rogers,  (^  Khh, 
N.  C.  141;  Matter  of  Lamoree,  32  Barb.  122.  Nor  for  insuffi- 
ciency in  the  allegations  of  the  petition.  Matter  of  Ztminer,  i  5 
Hun,  214.  The  defendant  is  entitled  to  a  new  hearing  if  it  ap- 
pears that  the  finding  against  him  was  induced  by  any  bias  or 
previously  formed  opinion.      Teboufs  Case,  9  Abb.  211. 

The  court  has  power  in  its  discretion  to  direct  a  new  commis- 
sion where  from  the  evidence  or  otherwise  there  is  doubt  that 
the  jury  erred  in  finding  that  the  party  was  not  of  unsound  mind. 
Matter  of  Lasher,  2  Barb.  Ch.  97.  An  application  to  confirm  or 
set  aside  an  inquisition  of  lunacy  is  addressed  very  much  to  the 
discretion  of  the  court  and  brings  the  case  before  it  on  the 
merits.  Matter  of  Rogers,  9  Abb.  N.  C.  141.  On  petition  to 
supersede  the  committee  of  a  lunatic  on  the  ground  that  the  al- 
leged lunatic  is  restored  to  his  right  mind,  evidence  tending  to 
show  that  the  inquisition  was  procured  by  fraud  will  not  be  re- 
ceived in  the  absence  of  such  allegations  in  the  petition.  Matter 
of  Zimmer,  15  Hun,  214.  In  Matter  of  Cooper,  5  Law  Bull.  38, 
a  verdict  was  set  aside  as  against  weight  of  evidence  and  trial 
ordered  at  circuit  on  issues  framed.  An  application  to  set  aside 
the  proceedings  of  a  sheriff's  jury  should  be  denied,  even  though 


COMMITTEE   FOR   LUNATICS,  ETC.  713 

Art.  5.     Proceedings  on  Return  of  Commission. 

§  2330  has  not  been  complied  with,  if  the  commission  and  in- 
quisition have  been  filed  with  the  clerk  pursuant  to  §  2332^ 
Matter  of  Gill,  Abbot's  Annual,  1884,  page  180. 

The  custody  of  a  lunatic's  person  and  estate  may  be  committed 
to  the  next  of  kin,  instead  of  the  heir ;  the  presumption  is  in 
favor  of  kinder  treatment  from  a  daughter  to  a  mother  than  from 
any  other  relatives.  Matter  of  Livingston,  i  Johns.  Ch.  436.  The 
guardianship  of  a  lunatic's  estate  is  not  as  a  matter  of  course  tc 
be  committed  to  those  presumptively  entitled  to  it  on  his  death, 
but  they  will  be  appointed  where  they  appear  to  be  the  persons 
most  likely  to  protect  it.  Matter  of  Taylor,  9  Paige,  611.  If 
the  next  of  kin  unite  in  a  petition  and  name  the  proper  person 
or  consent  in  writing,  such  person  is  usually  selected.  But  if 
they  do  not  so  petition  or  consent  there  should  be  an  order  of 
reference  and  notice  to  the  next  of  kin  ;  it  is  irregular  to  appoint 
a  stranger  without  notice.  Matter  of  Lanioree,  19  How.  375, 
32  Barb.  122.  But  on  the  other  hand  it  is  held  that  the  appoint- 
ment of  a  stranger  as  committee  of  a  lunatic  or  idiot  without 
notifying  those  who  will  succeed  such  idiot  as  heir  is  not  ir- 
regular, and  will  not  be  set  aside  on  their  motion.  Matter  of 
Owens, /^y  How.  150;  Pickersgillv.  Reed,  5  Hun,  170.  It  was  said 
in  Matter  of  Paige,  7  Daly,  155,  limiting  5  id.  288,  that  there  is 
no  rule  of  law  excluding  the  heirs  and  next  of  kin  of  a  lunatic 
from  appointment  as  committee  of  his  person  and  property  ; 
though  the  court  will  exercise  care  and  circumspection  in  ap- 
pointing those  who  might  be  benefited  by  the  lunatic's  death, 
there  is  no  absolute  preference  as  a  rule  of  law  between  them 
and  strangers.  The  keeper  of  an  asylum  will  not  be  appointed 
committee  of  a  lunatic.  Matter  of  O'Connell,  5  Law  Bull.  60. 
Trust  companies  may  be  appointed  committee  of  idiots,  lunatics, 
and  habitual  drunkards.     Chap.  485,  Laws  of  1885. 

Precedent  for  Petition  for  Appointment  of  Committee  by  Next 

of  Kin. 

SUPREME  COURT— Columbia  County. 


In  the  Matter  of  Henry  G.  Hoornbeck,  a 
Lunatic. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  Melissa  Hoornbeck,  Sarah  Hoornbeck,  William  L, 


714  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  5.     Proceedings  on  Return  of  Commission. 

Hoornbeck,  and  Martin  Hoornbeck  respectfully  shows  to  the  court 
that  heretofore,  and  on  the  5th  day  of  June,  1887,  Henry  G.  Hoorn- 
beck was  declared  a  lunatic,  and  incapable  of  attending  to  his  busi- 
ness and  affairs  by  a  commission  appointed  by  this  court  on  deter- 
mmation  of  a  jury.  That  a  committee  is  about  to  be  appointed  of 
the  person  and  estate  of  said  lunatic,  and  your  petitioners  are  his 
only  next  of  kin,  being  his  sisters  and  brothers,  his  parents  being 
dead,  and  he  being  unmarried.  That  your  petitioners  believe  Amos 
Ward,  of  the  city  of  Hudson,  to  be  a  proper  person  to  be  appointed 
such  committee,  both  of  the  person  and  estate  of  said  lunatic,  and, 
therefore,  pray  the  court  that  upon  the  filing  the  security  required  by 
law  and  directed  by  this  court,  the  said  Amos  Ward  be  appointed 
committee  of  the  person  and  estate  of  said  Henry  G.  Hoornbeck, 
with  the  usual  powers  incident  thereto. 

MELISSA    HOORNBECK, 

A.  B.  GARDENIER,  SARAH  HOORNBECK, 

Attorney  for  Petitioners,  WILLIAM  L.  HOORNBECK, 

Hudson,  N.  F.  MARTIN  HOORNBECK. 

(Add  verification.') 


The  granting  or  refusing  of  costs  rests  in  the  sound  discretion 
of  the  court,  and  will  not  be  granted  against  the  estate  of  the 
lunatic,  unless  the  proceedings  were  instituted  for  his  benefit  and 
prosecuted  fairly  and  in  good  faith.  Matter  of  Bcckivitli,  3  Hun, 
443.  In  that  case,  where  an  attorney  had  taken  proceedings  to 
set  aside  a  commission  without  consulting  the  lunatic  or  his  fam- 
ily, he  was  charged  with  costs.  The  petitioner  is  not  ordered  to 
pay  costs,  as,  of  course,  on  failure,  but  will  be  excused  if  the  peti- 
tion was  in  good  faith  and  on  probable  grounds.  Broivcr  v.  Fisher, 
4  Johns,  Ch.411  ;  Matter  of  McAdams,  14  Hun,  492.  And  where 
one  jury  found  the  party  of  unsound  mind,  good  faith  is  pre- 
sumed. Matter  of  Giles,  11  Paige,  338.  The  committee  in  such 
case  will  be  allowed  legal  and  proper  expenses,  and  counsel  fees 
out  of  the  estate.  Matter  of  Clapp,  20  How.  385.  A  solicitor 
who  unsuccessfully  opposes  a  commission  cannot  claun  costs 
against  the  estate,  though  the  court  may  allow  them  in  its  dis- 
cretion. Matter  of  Conklin,^  Paige,  450.  Tiie  allowance  of  costs 
to  pay  expenses  of  proceedings  on  appointment  of  a  committee 
is  in  discretion  of  the  court.  Matter  of  Folder,  4  Johns.  Cii.  170; 
Matter  of  Traey,  i  Paige,  583  ;  Matter  of  Rtissell,  i  Barb.  Ch.  39. 
Where  the  issue  is  awarded  for  the  benefit  of  a  third  party,  for  the 
purpose  of  sustaining  a  conveyance  from  the  lunatic,  he  was  or- 
dered to  pay  costs.  Matter  of  Van  Cott,  i  Paige,  489;  Matter  of 
Folger,^  Johns.  Ch,  169.     If  the  wife  of  a   lunatic,  without  prob- 


COMMITTEE   FOR    LUNATICS,  ETC.  715 

Art.  5.     Proceedings  on  Return  of  Commission. 

able  cause,  applies  for  the  removal  of  a  committee,  costs  may  be 
allowed  to  the  committee  and  denied  to  her.  Matter  of  Lytic,  3 
Paige,  251.  By  rule  72  of  1883  the  court  may  allow  the  commis- 
sioners a  compen.sation  not  to  exceed  $10  for  each  day  for  each 
commissioner,  and  the  court  may  direct  the  payment  of  costs  and 
expenses  up  to  $250,  exclusive  of  witnesses'  fees,  but  in  excess  of 
that  the  order  must  be  on  notice  to  all  parties  who  have  appeared 
in  the  proceedings. 

The  court  has  power,  even  after  the  death  of  the  supposed  luna- 
tic before  confirmation  of  the  inquisition,  to  charge  his  estate  with 
costs  by  virtue  of  §  2336.  Matter  of  Loft  house,  3  App.  Div.  141. 
The  obligation  of  the  sureties  on  the  bond  of  a  corrmittee  of  an 
incompetent  is  for  any  failure  on  the  part  of  the  principal  to  ac- 
count for  and  pay  over  moneys  which  may  legally  come  into  his 
hands  as  such  committee;  therefore  it  was  held  that  the  sureties 
are  not  responsible  for  the  committee's  neglect  to  pay  over  pro- 
ceeds of  the  lunatic's  interest  in  real  estate  which  such  committee 
had  assumed  to  sell  without  applying  to  the  court  for  permission 
to  do  so  ;  this  on  the  ground  that  the  committee  received  the 
money  wrongfully.     Johnson  v.  Aycrs,  18  App.  Div.  497. 

Matter  of  Connell,  5  Law  Bull.  60,  raises  the  question  whether 
the  bond  can  be  dispensed  with.  The  Supreme  Court  may  grant 
relief  to  the  sureties  of  a  committee,  and  require  new  security 
under  chapter  654,  Laws  1881,  while  by  chapter  425,  Laws  1885, 
a  trust  company  may  be  appointed  committee  with  or  without 
giving  security. 

Bond  of  Committee. 

Know  all  men  by  these  presents,  That  we,  Thomas  Snyder,  Philip 
A.  Ayers.  and  Jacob  L.  Snyder,  of  the  town  of  Marbletown,  in  the 
county  of  Ulster,  are  held  and  firmly  bound  unto  Cornelia  DuBois, 
of  the  town  of  Marbletown,  in  the  county  of  Ulster,  an  idiot,  in  the 
sum  of  $800,  lawful  money  of  the  United  States,  to  be  paid  to  said 
idiot,  her  executors,  admmistrators,  or  assig-ns,  to  which  payment 
well  and  truly  to  be  made,  we  bind  ourselves,  our  and  each  of  our 
heirs,  executors,  and  administrators,  jointly  and  severally,  firmly  by 
these  presents,  sealed  with  our  seals. 

Dated  23d  day  of  June,   1887. 

The  condition  of  this  oblig-ation  is  such  that  if  the  above-bounden 
Thomas  Snyder  shall  and  will,  faithfully  in  all  thing^s,  discharge  the 
trust  reposed  in  him,  as  the  committee  of  the  person  ruid  estate  of 
-Cornelia  Du  Bois,  and  obey  all  lawful  directions  of  any  court  or  officer 
of  competent  jurisdiction  touching  the  trust,  and  that  he  will  in   all 


7l6  COMMITTEE   FOR   TUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

respects  render  a  just  and  true  account  of  all  moneys  and  other  prop- 
erty received  by  him,  and  of  the  application  thereof,  and  of  his 
guardianship  whenever  he  is  required  so  to  do  by  a  court  of  com- 
petent jurisdiction,  then  this  obligation  to  be  void,  else  to  remain  in 
full  force  and  virtue. 

THOMAS  SNYDER, 
Sealed  and  delivered)  PHILIP  A.  AVERS, 

in  presence  of        j  JACOB  L.   SNYDER. 

JOHN  BRODHEAD. 
yAdd  justification  and  acknowledgment^ 

The  order  appointing  committees  may  be  in  the  usual  form  of 
orders  in  the  court  having  jurisdiction,  and  no  precedent  seems 
to  be  required. 

ARTICLE  VI. 
Powers   and  Duties  of   Committee.    §§  2338-2344. 

§  2338.     [Am'd,  1895.]     Compensation  of  committee. 

A  committee  of  the  properly  is  entitled  to  the  same  compensation  as  an  executor 
or  administrator.  But  in  a  special  case,  where  his  services  exceed  those  of  an  exec- 
utor or  administrator,  the  Supreme  Court  or  a  county  court  within  the  county  may 
allow  him  such  an  additional  compensation  for  such  additional  services,  as  it  deems 
just.  The  compensation  of  a  committee  of  the  person  must  be  fixed  by  the  court, 
and  paid  by  the  committee  of  the  property,  if  any,  out  of  the  funds  in  his  hands.  The 
additional  compensation  authorized  by  this  section  may  be  allowed  to  the  committee 
upon  any  judicial  settlement  made  by  him,  and  shall  be  for  such  additional  services 
up  to  and  including  such  settlement. 

See  L.  1890,  ch.  516  ;  L.  1895,  ch.  946. 

§  2339.  Committee  under  control  of  court ;  limitation  of 
powers. 

A  committee,  either  of  the  person  or  of  the  property,  is  subject  to  the  direction  and 
control  of  the  court  by  which  he  was  appointed,  with  respect  to  the  execution  of  his 
duties  ;  and  he  may  be  suspended,  removed,  or  allowed  to  resign,  in  the  discretion 
of  the  court.  A  vacancy  created  by  death,  removal,  or  resignation  may  be  filled  by 
the  court.  But  a  committee  of  the  property  cannot  alien,  mortgage,  or  otherwise 
dispose  of,  real  property,  except  to  lease  it  for  a  term  not  exceeding  five  years,  with- 
out the  special  direction  of  the  court,  obtained  upon  proceedings  taken  for  that  pur- 
pose, as  prescribed  in  title  seveutJhi  of  this  chapter. 

§  2340.  Committee  of  property  may  maintain  actions,  etc. 

.V  committee  of  the  property,  appointed  as  prescribed  in  this  title,  may  maintain, 
in  his  own  name,  adding  his  official  title,  any  action  or  special  proceeding,  which 
the  person,  wMth  respect  to  whom  he  is  appointed,  might  have  maintained,  if  the  ap- 
pointment had  not  been  made. 

Part  of  §  5  of  act  of  1874,  am'd  ;  see  §  429 ;  §  426,  sub.  2  ;  §§  427-428,  1755. 

§  2341.     [Am'd,  1894.]    Id.;  to  file  inventory  and  account. 

The  provisions  of  article  two  of  title  seven  of  chapter  eighteen  of  this  act,  requiring 
the  general  guardian  of  an  infant's  property,  appointed  by  a  surrogate's  court,  to  file 
in  the  mnoth  of  January  in  each  year  an  inventory,  account,  and  affidavit,  and  prescrib- 
ing the  form  of  the  papers  so  to  be  filed,  apply  to  a  committee  of  the  property 


COMMITTEE   FOR   LUNATICS,  ETC.  717 

Art.  6.     Powers  and  Duties  of  Committee. 

appointed,  as  prescribed  in  this  title.  For  the  purpose  of  making  that  appHcation 
the  committee  is  deemed  a  general  guardian  of  the  property  ;  the  person  with  respect 
to  whom  he  is  appointed,  is  deemed  a  ward  and  the  papers  must  be  filed  in  the  office 
of  the  clerk  of  the  court  by  which  the  committee  was  appointed,  or  if  he  was  appointed 
by  the  Supreme  Court,  in  the  clerk's  ofiice  where  the  order  appointing  him  is  entered. 
In  every  case  where  a  committee  has  used  or  employed  the  services  of  an  incom- 
petent person,  with  respect  to  whom  he  has  been  appointed  a  committee,  or  where 
moneys  have  been  earned  by  or  received  on  behalf  of  such  incompetent  person,  the 
committee  must  account  for  any  moneys  so  earned  or  derived  from  such  services,  the 
same  as  for  other  property  or  assets  of  the  incompetent  person. 
L.  1894,  ch.  51. 

g  2342.  [Am'd,  1895.]  Id. ;  may  be  compelled  to  file  the 
same,  or  render  an  additional  account,  etc. 

In  the  month  of  February  of  each  year,  the  presiding  judge  of  the  court  by  which 
the  committee  of  the  property  was  appointed,  or,  if  he  was  appointed  by  the  Supreme 
Court,  the  county  judge  of  the  county  where  the  order  appointing  him  is  entered, 
must  examine,  or  cause  to  be  examined  under  his  direction,  all  accounts  and  inven- 
tories filed  by  committees  of  the  person  and  property,  since  the  first  day  of  February 
of  the  preceding  year.  If  it  appears  upon  the  examination,  that  a  committee,  ap- 
pointed as  prescribed  in  this  title,  has  omitted  to  file  his  annual  inventory  or  account- 
ing, or  the  affidavit  relating  thereto,  as  prescribed  in  the  last  section  ;  or  if  the  judge 
is  of  the  opinion  that  the  interest  of  the  person,  with  respect  to  whom  the  committee 
was  appointed,  requires  that  he  should  render  a  more  full  or  satisfactory  inventory 
or  account,  the  judge  must  make  an  order,  requiring  the  committee  to  supply  the 
deficiency,  and  also,  in  his  discretion,  personally  to  pay  the  expense  of  serving  the 
order  upon  him.  An  order  so  made  may  be  entered  and  enforced,  and  the  failure  to 
obey  it  may  be  punished,  as  if  it  were  made  by  the  court.  Where  the  committee 
fails  to  comply  with  the  order,  within  three  months  after  it  is  made,  or  where  the 
judge  has  reason  to  believe  that  sufficient  cause  exists  for  the  removal  of  the  com- 
mittee, the  judge  may,  in  his  discretion,  appoint  a  fit  person  special  guardian  of  the 
incompetent  person  with  respect  to  whom  the  committee  was  appointed  for  the  pur- 
pose of  filing  a  petition  in  his  behalf  for  the  removal  of  the  committee  and  prosecut- 
ing the  necessary  proceedings  for  that  purpose.  The  committee  may  be  compelled, 
in  the  discretion  of  the  court,  to  pay  personally  the  costs  of  the  proceedings  so  insti- 
tuted. The  committee  of  the  property  of  an  incompetent  person  appointed  as  pre- 
scribed in  this  title,  may  at  any  time  in  the  discretion  of  the  court  making  such 
appointment,  render  to  such  court  an  intermediate  judicial  account  of  all  his  proceed- 
ings affecting  the  property  of  the  incompetent  person  to  the  date  of  the  filing  thereof  ; 
and  said  account  shall  be  then  judicially  adjusted,  determined,  and  filed  ;  and  the 
same  shall  be  in  all  respects  a  final  judicial  account  of  the  proceedings  of  said  com- 
mittee affecting  said  property  to  that  time.  Notice  of  the  application  for  such  inter- 
mediate accounting  shall  be  given  in  the  manner  in  which  and  to  the  persons  to 
whom  notice  of  application  for  the  appointment  of  a  committee  of  the  person  or 
property  of  an  alleged  lunatic,  idiot,  or  habitual  drunkard  is  required  to  be  given  by 
title  six  of  chapter  seventeen  of  the  Code  of  Civil  Procedure.  The  court  shall  have 
power  and  it  shall  be  its  duty,  if,  in  its  discretion,  the  interests  of  the  person  with 
respect  to  whom  the  committee  was  appointed,  require  it,  to  appoint  a  suitable  person 
as  special  guardian  of  the  incompetent  person  for  the  protection  of  his  rights  and 
interests  in  said  proceeding. 

L.  1874,  ch.  446,  §  4,  am'd  ;  see  §  2844  ;  L.  1895,  ch.  740,  superseding  amendment 
in  ch.  946  ;  see  ch.  946,  §  4. 

§  2343.  Property,  when  to  be  restored. 

Where  a  person,  with  respect  to  whom  a  committee  is  appointed,  as  prescribed  in 


7l8  COMMITTEE    FOR    LUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

this  title,  becomes  competent  to  manage  himself  or  his  affairs,  the  court  must  make 
an  order,  discharging  the  committee  of  his  property,  or  the  committee  of  his  person, 
or  both,  as  the  case  requires,  and  requiring  the  former  committee  to  restore  to  him 
the  property,  remaining  in  the  committee's  hands.  Thereupon  the  property  must  be 
restored  accordingly. 
Id.  §  28,  am'd. 

§  2244.  Id.  ;  disposition  in  case  of  death. 

Where  a  person,  of  whose  property  a  committee  has  been  appointed,  as  prescribed 
in  this  title,  dies  during  his  incompetency,  the  power  of  the  committee  ceases  ;  and 
the  property  of  the  decedent  must  be  administered  and  disposed  of,  as  if  a  committee 
had  not  been  appointed. 

Id.  §  29  and  §  25,  am'd  by  L.  1865,  ch.  724  (6  Edm.  581  j. 

It  is  said,  in  Matter  of  Roberts,  3  Johns.  Ch.  43,  that  a  com- 
mittee of  a  lunatic  is  entitled  to  compensation  for  his  services  in 
receiving  and  paying  out  moneys,  the  same  as  a  guardian  or  exec- 
utor, and  in  Matter  of  Livingston,  9  Paige,  440,  that  besides  act- 
ual expenditures  and  disbursements,  the  court  cannot  allow  the 
committee  for  his  personal  services  any  other  or  greater  compen- 
sation than  that  allowed  to  executors  and  administrators.  But  in 
the  Estate  of  ColaJi,  6  Daly,  51,  it  was  held  that  the  committee 
was  an  officer  of  the  court,  and  in  the  absence  of  legislation  at  that 
time  the  court  had  discretion  as  to  compensation,  and  $5,000  was 
allowed.  This  was,  of  course,  previous  to  the  enactment  of  the 
present  section,  which  regulates  the  compensation  in  accordance 
with  the  earlier  decisions.  The  power  of  the  court  to  allow  costs 
and  expenses  incurred  by  the  committee  continues  up  to  the  final 
report  of  the  referee  to  settle  his  accounts;  the  reasonable  charges 
of  applications  made  to  the  court  by  the  committee  for  instruc- 
tions may  be  allowed  as  a  necessary  disbursement.  Matter  of 
Clapp,  20  How.  385.  An  allowance  for  services  cannot  be  made 
to  one  who  has  acted  as  an  attorney  for  the  lunatic  and  the  com- 
mittee without  notice  to  the  committee.  Matter  of  Clowes,  3 
Law  Bull.  21.  The  committee  of  an  habitual  drunkard  who  was 
guilty  of  gross  negligence  will  be  charged  with  costs  of  proceed- 
ings for  his  removal  and  to  procure  a  settlement  of  his  accounts. 
Matter  of  Carter,  3  Paige,  146.  The  committee  of  a  lunatic  on  a 
final  accounting  is  entitled  to  full  compensation  for  receiving  and 
paying  out  the  property  without  regard  to  sums  disbursed  as  ex- 
penses. The  matter  of  allowing  counsel  fees  is  in  the  discretion 
of  the  court.  In  re  B/ossonis  Estate,  7  Supp.  360,  26  St.  Rep. 
763.  The  Supreme  Court  has  power  to  revise  or  modify  the  de- 
cision of  the  Court   of  Common   Pleas  as  to  allowances  for  ex- 


COMMITTEE   FOR    LUNATICS,  ETC.  "Jig 

Art.  6.     Powers  and  Duties  of  Committee. 

penses,  etc.,  made  to  a  committee  of  a  lunatic  for  the  execution  of 
a  trust.  Butler  v.  Jarvis,  51  Hun,  248,  Van  Brunt.  J.,  dissenting. 
In  Matter  of  Burr,  17  Barb.  9,  Mr.  Justice  Hand  defines  the 
duties  of  the  committee  as  follows,  citing  many  authorities:  "  The 
duties  of  the  committee  of  the  person  are  very  delicate  and  im- 
portant, being,  says  Mr.  Shelford,  to  administer  all  the  comfort 
and  amusement  the  nature  of  the  case  will  admit  or  the  funds  of 
the  lunatic  afford.  He  should  be  treated  with  great  kindness, 
and  all  reasonable  means  of  restoration  should  be  employed,  and, 
so  far  as  necessary  for  this  purpose,  the  expectations  of  the  next 
of  kin  and  all  others  disregarded  ;  the  great  principal  that  per- 
vades all  orders  in  cases  of  lunacy  is  solely  and  exclusively  his 
interest  and  comfort." 

If  any  person  is  furnishing  an  habitual  drunkard  with  the  means 
of  intoxication,  the  committee  should  apply  to  the  court  for  an 
order  restraining  all  persons  from  furnishing  the  drunkard  with 
ardent  spirits  or  means  of  obtaining  it  without  the  sanction  of  the 
committee,  and  a  violation  of  the  order,  after  notice,  will  be  pun- 
ished as  a  contempt.  Matter  of  Heller,  3  Paige,  199;  Matter  of 
Hoag,  7  id.  312.  Judgments  by  an  innkeeper  for  ardent  spirits 
sold  under  such  circumstances  were  set  aside.  L Auioreaux  v. 
Crosby,  2  Paige,  402. 

A  bill  may  be  filed  for  the  enforcement  of  a  debt  of  the  lunatic 
against  the  committee  alone.  Brasher  v.  Cortlandt,  2  Johns.  Ch. 
400.  The  general  practice  is  to  unite  the  lunatic  with  the  com- 
mittee in  a  bill  brought  against  him.  Ortley  v.  Messere,  7  Johns. 
Ch.  139.  It  is  a  contempt  to  sue  the  lunatic  after  appoint- 
ment of  a  committee.  Matter  of  Hopper,  5  Paige,  489.  As  to 
joinder  of  the  lunatic  and  committee,  in  an  action  as  defendants, 
see  Teal  v.  Woodworth,  3  Paige,  470  ;  New  v.  New,  6  id.  237.  The 
committee,  under  the  direction  of  the  court,  has  the  entire  control 
of  the  lunatic.  Hoff.  Ch.  Pr.  262,  cited,  2  Crary's  Pr.  29.  The 
whole  estate,  both  real  and  personal,  of  the  lunatic,  may  be  ex- 
pended by  the  commitee  for  his  support.  Matter  of  Me  Far  Ian, 
2  Johns.  Ch.  440.  If  the  lunatic  resides  in  another  State  and  has 
property  there,  that,  properly,  should  be  first  applied  to  his  sup- 
port.    Matter  of  Taylor,  9  Paige,  611. 

The  committee  of  a  lunatic  has  no  title  to  or  interest  in  the  real 
estate  of  a  lunatic,  being  simply  a  representative  of  the  court,  he 
has  no  power  to  dispose  of  it  in  any  manner  without  an  order  of 


720  COMMITTEE    FOR   LUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

the  court  ;  thus  he  has  no  right  either  by  common  law  or  by  statute 
to  lease  the  property  of  a  lunatic  for  a  term  exceeding  five  years 
without  special  direction  of  the  court.  Paris  v.  Gere,  iio-I^.^Y'. 
336.  By  §  2329  the  committee  of  the  person  or  property  of 
the  lunatic  is  subject  to  the  direction  and  control  of  the  court  by 
which  he  was  appointed  with  respect  to  the  execution  of  his 
duties.  One  of  these  duties  is,  upon  the  termination  of  his 
of^ce,  to  hand  over  the  property  of  the  lunatic  to  the  proper  par- 
ties. The  Supreme  Court  has  power  to  pass  upon  the  accounts  of  the 
committee  of  a  lunatic  and  allow  his  commissions  notwithstanding 
§  2344.  Matter  of  Grout,  64  St.  Rep.  340,  3 1  Supp.  602,  83  Hun  27. 
The  power  of  a  court  over  the  property  of  a  lunatic  is  limited  by 
the  provisions  of  title  7.  Though  §  2339  provides  that  the  com- 
mittee of  the  property  or  person  of  a  lunatic  is  subject  to  the  con- 
trol and  direction  of  the  court,  yet  this  direction  and  control  cannot 
be  construed  to  authorize  the  court  to  direct  an  extinguishment 
by  the  committee  of  the  inchoate  right  of  dower  of  a  lunatic  ; 
such  power  is  not  expressly  given  to  the  court  by  title  7,  nor  is  it 
given  by  implication.  Matter  of  Dwin,  64  Hun  20,  18  Supp, 
723,  22  Civ.  Pro.  118.  Pending  an  action,  the  defendant  was 
adjudged  a  lunatic  and  her  committee  thereupon  substituted  as 
a  party ;  Jield,  a  good  defence  to  the  action  that  no  leave  had 
been  granted  to  sue  the  committee.  Matter  of  DelaJiunty,  44 
St.  Rep.  837. 

The  court  has  jurisdiction  on  the  application  of  an  attorney 
who  has  rendered  services  to  the  committee  of  a  lunatic  to  order 
the  committee  to  pay  for  the  full  value  of  such  services.  Matter 
of  Norto?t,  18  Misc.  406.  Where  a  committee  has  been  discharged 
and  the  property  of  a  former  incompetent  been  restored  to  him, 
the  court  has  no  further  control  over  such  property  except  to 
pass  the  accounts  of  tlic  committee;  thus  the  court  cannot  com- 
pel a  restoration  of  property  from  persons  to  whom  the  former 
incompetent  has  transferred  after  the  committee's  discharge. 
Matter  of  Dowd,  19  Misc.  688. 

Where  the  estate  of  the  lunatic  is  large,  the  committee  maybe 
allowed  clerk  hire  out  of  the  estate.  Matter  of  Livingston,  9 
Paige,  440,  affirmed  without  opinion,  2  Denio,  575.  The  resigna- 
tion of  the  coinmittec  will  not  be  accepted  merely  because  the 
duties  have  become  unpleasant.  Matter  of  Lytle,  3  Paige,  251. 
An    order  of   reference   will    be  made    on    such    an   application. 


COMMITTEE   FOR   LUNATICS,  ETC.  721 

Art.  6.     Powers  and  Duties  of  Committee. 

Matter  of  Miller,  15  Abb.  277.  An  order  removing  the  commit- 
tee is  discretionary  and  is  not  appealable  to  the  General  Term. 
Matter  of  Giiffer,  5  Abb.  (N.  S.)  96.  But  under  the  decision  in 
Ma,  An  v.  Windsor  Hotel  Co.,  70  N.  Y.  loi,  matters  of  substance, 
although  discretionary,  may  be  reviewed  on  appeal  to  the  General 
Term. 

The  committee  of  a  lunatic's  estate  who  invested  it  in  a  mort- 
gage on  realty  may  release  a  part  of  the  mortgaged  premises  with- 
out applying  to  the  court.  Pickersgill  v.  Reed,  5  Hun,  170.  The 
committee  of  an  habitual  drunkard  ought  not  to  make  him  a 
monthly  allowance  for  spending  money.  Stephens  v.  Marsltall, 
23  Hun,  641. 

After  inquisition  found,  and  the  appointment  of  a  committee 
of  the  estate  of  a  lunatic,  the  court  has  jurisdiction  to  direct  the 
application  of  the  estate  to  the  payment  of  the  demands  existing 
against  it,  and  this  relief  may  be  granted  on  petition  of  a  com- 
plainant, but  where  the  estate  is  insufficient  to  pay  all  the  debts 
in  full,  the  assets,  personal  and  real,  must  be  distributed  among 
the  claimants  ratably.  Where  the  committee  occupied  leased 
premises,  and  carried  on  the  business  of  the  lunatic,  the  rent  ac- 
cruing will  be  regarded  as  a  reasonable  expense  incurred  by  the 
committee,  to  be  paid  in  preference  to  other  creditors.  In  re 
Otis,  loi  N.  Y.  580.  After  an  adjudication  of  lunacy  has  been 
made  and  confirmed,  and  a  committee  appointed  and  qualified, 
the  committee  occupies  the  same  place  and  fills  the  same  posi- 
tion as  the  lunatic  in  regard  to  his  personal  estate  and  property. 
He  has  the  same  right  to  deal  therewith  as  the  lunatic  enjoyed 
before  inquisition  found,  and  is  his  representative  in  respect  to 
all  matters  connected  with  the  estate.  Viets  v.  Union  Nat.  Bank  of 
Troy,  loi  N.  Y.  569.  The  proper  course,  where  there  is  a  com- 
mittee, is  to  petition  the  court,  which  may  either  allow  a  suit  or 
direct  a  reference.  Matter  of  Hopper,  5  Paige,  189;  Williams  v. 
Cameron,  26  Barb.  172;  Soverhill  v.  Dickinson,  5  How.  109; 
Matter  of  Wing,  5  Hun,  170;  Sandford  v.  Sandford,  62  N.  Y. 
553  ;  Robert s&n  v.  Lain,  19  Wend.  649  ;  Clarke  v.  Dunham,  4  Denio, 
262;  Matter  of  Heller,  3  Paige,  199;  Brasher  v.  Van  Cortlandt, 
2  Johns.  Ch.  242,  400. 

Where  the  motion  for  leave  to  sue  is  heard  on  conflicting  affida- 
vits it  will  be  granted,where  a  case  is  shown,which,  if  proved,  would 
entitle  a  party  to  relief  in  equity.     Matter  of  Wing,  2  Hun,  671. 
46 


722  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

The  same  rule,  requiring  leave  to  .sue  as  to  habitual  drunkards,  is 
held  in  Brown  v.  Betts,   13  Wend.  29;  L'Amoreaux  v.   Crosby, 
2  Paige,  422 ;  Niblo  v.  Havtson,  9  Bosw.  668 ;  Hall  v.   Taylor^ 
8   How.  428.     Proceedings   to  foreclose   a  mortgage  against  an 
habitual  drunkard  cannot  be  taken  without  leave  of  the  court. 
Ex  parte  Parker,  6  Alb.  L.  J.  324.     Lunatic  defendant  can  volun- 
tarily appear,  and  the  court  will  appoint  guardian  ad  litem  for 
him  in  partition.     Rogers  v.  McLean,  34  N.  Y.  536.     The  com- 
mittee will,  of  course,  be  appointed  special  guardian  where  he 
has  no  adverse  interest  to  the  lunatic  where  both  are  sued.     New 
V.  New,  6  Paige,  237.     A  committee  who  has  consented  to  have 
the  rights  of  the  parties  litigated  on  a  bill  filed  cannot  afterward 
object  that  he  had  been  proceeded  against  in  that  manner,  with- 
out leave  of  the  court  by  which  he  was  appointed.     Outtrin  v. 
Graves,  i  Barb.  Ch.  49.     An  attorney  was  authorized  to  appear 
for  an  idiot  of  full  age  on  his  retainer,  in  Faulkner  v.  McClure,  18 
Johns.  134.     As  to  when  a  judgment  against  a  lunatic  is  not  void. 
Sternbergh  v.  Schoolcraft,  2  Barb.  153  ;  Matter  of  Hopper,  5  Paige, 
489  ;  Person  v.  Warren,  14  Barb.  488  ;  Loomis  v.  Spencer,  2  Paige, 
153;  Prentiss  v.   Cornell,  31    Hun,  167,  aflfirmed,  96  N.  Y.  665. 
Judgment  was  set  aside  in  Demelt  v.  Leonard,  19  How.  140.     An 
habitual  drunkard  can  have  no  lucid  intervals;  the  inquisition  is 
in  the  nature  of  a  proceeding  in  rem,  and  persons  subsequently 
dealing  with  him  are  deemed  to  have  notice  of  his  incapacity. 
Wadsworth  v.  Sharpsteen,  8  N.  Y.  388.     All  acts  done  after  inqui- 
sition found  are  absolutely  void.     V Amoreaux  v.  Crosby,  2  Paige^ 
422.     But  the  finding  of  an  inquisition  against  an  habitual  drunk- 
ard is  oxAy  prima  facie  ovx^L^nzQ  of  the  invalidity  of  an  act  done 
before  the  commission  issued,  but  which  is  overreached  by  the 
finding.      Van  Deusen  v.   Sweet,   51   N.  Y.   378;    Van    Wyck  v. 
Brasher,  81  id.  260.     In  the  latter  case  it  is  said  that  an  habitual 
drunkard  is  not  incompetent  to  execute  a  deed;  he  simply  is 
incompetent  upon  proof  that  at  the  time  his  understanding  was 
clouded,   or   his    reason    dethroned    by    actual  intoxication,    or 
upon  proof  of  general  unsoundness  of  mind.     Peck  v.  Cary,  27 
N.  Y.  9;  Gardner  v.    Gardner,    22    Wend.    526.     This   holding 
relates  to  an  act  before  inquisition  found,  and  does  not  neces- 
sarily conflict  with  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388,  supra. 
It  is  held  in  Lcivis  v.  f  ones,  50  Barb.  645,  that  an  habitual  drunk- 
ard, while  subject  to  a  committee,  is  only  prima  facie  incompe- 


COMMITTEE   FOR   LUNATICS,  ETC.  723 

Art.  6.     Powers  and  Duties  of  Committee. 

tent  to  make  a  will,  and  the  like  rule  is  held  as  to  a  deed.  Van 
Deusen  v.  Sweet,  51  N.  Y.  378;  Rider  v.  Miller,  86  id.  507; 
Hirsch  v.  Tramor,  3  Abb.  N.  C.  274;  Searles  v.  Harvey,  6  Hun, 
658.  So  also  as  to  a  note.  Hicks  v.  Mars/mil,  8  id. 327.  And  in 
case  of  marriage.  Banker  v.  Banker,  63  N.  Y.  409.  It  is  said  a 
person  against  whom  an  inquisition  in  lunacy  has  been  issued, 
but  who  is  not  concededly  incapable  of  managing  his  own  affairs, 
cannot  be  deprived  of  the  control  of  his  property,  or  the  right  to 
take  legal  proceedings  to  obtain  satisfaction  of  a  valid  demand 
before  an  adverse  decision  by  a  jury.  Estate  of  Halsey,  16  Week. 
Dig.  437.  A  proceeding  de  limatico  has  no  effect  on  a  contract 
made  without  notice,  and  on  the  faith  that  the  person  contracted 
with  was  of  competent  understanding.  Mutual  Life  Ins.  Co.  v. 
Hunt,  79  N.  Y.  541. 

Where  a  lunatic  continued  to  reside  with  his  family  after  inqui- 
sition, and  parties  ignorant  of  the  commission  furnished  him 
groceries,  the  bill  was  ordered  paid  by  the  committee.  Matter 
of  Wing,  2  Hun,  671.  See  Ex  parte  Cunningham,  id.  114.  The 
committee  of  a  lunatic,  by  taking  possession  of  property  leased 
by  a  lunatic,  and  continuing  it  for  the  use  of  the  estate,  makes 
himself  liable  in  the  same  manner  as  an  executor  or  trustee. 
Matter  of  Otis,  34  Hun,  542.  For  further  references  as  to  con- 
tracts of  lunatics,  actions  against  lunatics,  and  management  of 
estates  of  lunatics,  see  Brightly's  Dig.,  vol.  2,  page  2571,  and  vol. 
3,  page  5378,  title  "  Lunacy." 

Any  proceedings  which  have  for  their  design  to  divest  a  lunatic 
of  his  title  to  real  property  and  to  transfer  it  to  another  are  in 
derogation  of  the  common  law,  which  requires  every  prerequisite 
to  be  fully  and  literally  observed.  Thus,  where  the  committee 
of  the  lunatic  transferred  his  real  property  by  the  execution  and 
delivery  of  a  deed,  without  permission  of  the  court,  he  thereby 
transferred  no  title,  and  therefore  any  consideration  he  received 
did  not  legally  come  into  his  hands;  held,  therefore,  that  his 
sureties  were  not  liable  for  his  failure  to  pay  it  over,  fohnstoti 
V.  Ayres,  18  App.  Div.  498. 

Independent  of  statute,  courts  have  no  authority  to  sell  the  real 
estate  of  a  lunatic,  even  for  the  payment  of  his  debts,  and  even 
though  his  heirs  at  law  and  next  of  kin  consent  to  such  sale. 
Walrath  v.  Abbott,  75  Hun,  450,  59  St.  Rep.  644.  It  seems  that 
if  the  committee  without  the  order  of  the  court  convey  real  prop- 


724  COMxMITTEE   FOR    I.UNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

erty  of  the  lunatic,  no  title  will  be  acquired  by  the  transferee 
which  would  be  good  against  the  lunatic  or  his  heirs.  Nor  will  it 
be  presumed  that  the  committee  had  procured  the  proper  order  to 
make  such  sale.  Walrath  v.  Abbott,  92  Hun,  606  (2d  appeal). 
A  committee  may  sue  in  his  own  name  to  cancel  the  sale  of  a 
farm  to  a  lunatic,  and  to  procure  satisfaction  of  a  mortgage  exe- 
cuted by  him.  Fields  v.  Fowler,  2  Hun,  400.  Although  it  was 
held  before  the  enactment  of  this  section  that  the  committee  was 
not  the  trustee  of  an  express  trust,  and  not  authorized  to  bring 
an  action  as  to  real  estate.  Burnet  v.  Bookstaver,  10  Hun,  481  ; 
McKillip  V.  McKillip,  8  Barb.  552.  But  a  contrary  rule  is  held 
in  Pearson  v.  Warren,  14  id.  488.  Committee  cannot  ratify  a 
contract  of  a  lunatic  made  by  him  after  office  found,  so  as  to 
maintain  an  action  upon  it.  FitzJmgh  v.  Wilcox,  12  Barb.  235. 
The  committee  of  a  lunatic  may  maintain  an  action  to  set  aside 
a  purchase  of  real  property,  pending  a  commission  against  the 
vendor  as  an  habitual  drunkard.  It  is  contempt  of  court. 
Griswoldv.  Miller,  15  Barb.  520.  The  defendant  sought  to  re- 
verse a  judgment  on  the  ground  that  the  plaintifT  was  insane  at 
the  time  of  the  commencement  of  the  action,  and  was  incom- 
petent to  employ  an  attorney,  and,  therefore,  the  attorney  was 
without  authority  to  appear  for  him.  The  plaintiff  had  not 
been  judicially  declared  to  be  a  lunatic,  but  was  confined  in  an 
asylum  and  pronounced  by  the  physicians  there  to  be  incurably 
insane.  Held,  that  the  right  to  commence  an  action  in  the 
name  of  a  person  of  unsound  mind,  before  he  is  declared  to  be 
such,  is  implied  by  this  section.  That  a  lunatic  has  a  legal 
standing  to  appear  as  a  party  until  a  committee  has  been  ap- 
pointed as  provided  by  law.  Rumberg  v.  Johnson,  5  State  Rep. 
860. 

The  word  "  may"  in  §  2340,  giving  the  committee  authority 
to  sue,  should  not  be  construed  as  **  must "  or  "  shall."  The 
section  is  permissory  only  and  not  mandatory.  An  action  of 
ejectment  may,  therefore,  be  properly  brought  in  the  name  of  the 
plaintiff,  although  he  is  a  lunatic  and  although  a  committee  has 
been  appointed  of  his  person  and  estate.  In  equity  actions,  how- 
ever, the  lunatic  should  be  named  as  party  suing  by  his  committee, 
unless  the  action  is  for  a  debt  transferred  to  the  committee,  as  to 
which  matters  the  committee  may  be  sued  in  their  own  name. 
Skinner  v.  Tibbits,  13  Civ.  Pro.  372.     The  committee  of  a  lunatic 


COMMITTEE   FOR   LUNATICS,  ETC.  725 

Art.  6.     Powers  and  Duties  of  Committee. 

is  a  "  person  aggrieved  "  on  certiorari  to  review  an  assessment, 
and  therefore  may  review  such  assessment.  Under  the  authority 
of  §  2340  he  may  have  such  a  writ  of  certiorari  to  review  such 
assessment.  People  ex  rel.  Canaday  v.  Williams,  90  Hun,  502. 
The  law  before  the  passage  of  the  Code  of  Civil  Procedure 
authorized  committees  to  sue  only  in  cases  relating  to  personal 
estate  ;  but  by  virtue  of  §  2340  power  was  given  to  the  committee 
to  institute  actions  relating  to  real  estate.  Mr.  Throop,  in  his 
notes  to  this  section,  says  that  the  provision  "  was  amended  so 
as  to  embrace  all  cases  where  a  remedy  is  pursued."  Therefore, 
the  committee  of  the  lunatic  may  maintain  an  action  for  the 
partition  of  real  estate  in  his  own  name  by  adding  his  official 
title.  He  need  not  make  the  lunatic  a  party.  Koepkev.  Bradley, 
3  App.  Div.  392.  If  the  committee  neglects  to  file  an  inventory 
or  to  render  his  accounts  regularly,  under  oath,  in  the  settlement 
of  his  accounts,  every  intendment  will  be  taken  most  strongly 
against  him.  Matter  of  Carter,  3  Paige,  146;  Matter  of  Seaman, 
2  id.  409.  When  the  committee  of  a  drunkard  fail  to  file  the  in- 
ventories required  by  law,  and  do  not,  at  the  commencement  of 
the  proceedings,  disclose  all  the  property  they  have  received, 
they  may  properly  be  charged  with  one-half  of  the  expenses  of 
the  accounting.  The  committee  should  not  be  credited  with 
amounts  allowed  by  them  to  the  inebriate  as  spending  money, 
subject  to  abuse  by  him,  nor  for  an  expenditure  which  it  does 
not  clearly  appear  that  the  inebriate,  if  in  possession  of  his 
faculties,  would  probably  have  made  himself.  The  committee 
should  forfeit  their  commissions  on  moneys  charged  to  them  be- 
cause its  expenditure  was  improper  and  subversive  of  the  pur- 
poses  of  their  appointment,  but  such  mismanagement  furnishes 
no  justification  for  a  refusal  to  correct  a  clerical  error  in  their  ac- 
counts, whereby  they  have  charged,  instead  of  crediting  them- 
selves, with  a  sum  of  money.  Matter  of  Stevens,  13  Week.  Dig. 
567,  23  Hun,  641.  Leave  will  not  be  granted  to  discontinue 
proceedings  to  compel  a  committee  of  a  deceased  lunatic  to  ac- 
count upon  the  application  of  the  administrator  in  order  to  en- 
able the  latter  to  begin  an  action  for  the  same  purpose  in  an-- 
other  court.  Matter  of  Butler,  8  Civ.  Pro.  56.  It  seems  that 
the  annual  accounts  of  the  committee  of  a  lunatic  may  be  ex- 
amined by  means  of  a  reference  under  authority  of  the  Code  of 
Civil  Procedure,  §  2844.     Matter  of  De  Russy,  37   St.  Rep.  648, 


726  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

14  N.  Y.  Supp.  178  ;  see   following  section,  §  2342,  as  to  the  ex- 
amination of  the  accounts  of  committee. 

Inventory  and  Account  of  Committee. 

ULSTER  COUNTY  COURT. 


In  the  Matter  of  the  Accounting  of  John  W. 
Searing,  Committee  of  David  A.  Abeel,  an 
Habitual  Drunkard. 


Inventory. 

A  just  and  true  inventory  of  the  property  of  David  A.  Abeel,  an 
habitual  drunkard,  on  the  ist  day  of  April,  1886,  made  pursuant  to 
law,  by  John  W.  Searing,  committee  of  said  habitual  drunkard. 

The  assets  of  said  habitual  drunkard  in  my  charge  and  under  my 
control  consist  of : 

A  farm  lying  in  the  town  of  Saugerties,  consisting  of  one 

hundred  and  fifty  acres,  valued  at $10,000 

Stock  thereon,  valued  at  (give  details  of  items) 1,600 

Twenty  shares  of  bank  stock  in  First  National  Bank  of  Sau- 
gerties, worth  at  par  value 2,000 

Balance  of  legacy  left  to  David  A.  Abeel 2, 500 

Farm  produce  (itemized) 780 

Bond  and  mortgage  on  real  estate  in  town  of  Ghent,  Colum- 
bia County » 1, 700 

A  dwelling-house  in  Saugerties 1,000 

Total  assets $19,  580 

I  have  made  no  investments  during  the  year.     I  have  received  the 
foUov^ring  sums  : 

From  sales  of  farm  produce $    750 

From  interest  on  bond  and  mortgage 102 

From  rent  on  house 60 

From  interest  on  loan ....  150 

From  rent  of  farm. 1,000 

From  all  other  sources 300 

$2,352 
I  have  paid  out  for  support  and  maintenance  of  said  David 

A.  Abeel  and  his  family,  and  taxes  and  insurance 1,500 

In  my  hands $852 

April  4,  1886. 

Ulster  County,  ss.  .• 

John  W.  Searing,  the  committee  of  the  person  and  property  of  the 
above-named   David  A.  Abeel,    an   habitual   drunkard,    being  duly 


COMMITTEE  FOR   LUNATICS,  ETC.  72/ 

Art.  6.     Powers  and  Duties  of  Committee. 

sworn,  doth  depose  and  say,  that  the  foregoing  inventory  and  ac- 
count contain,  to  the  best  of  deponent's  knowledge  and  belief,  a 
full  and  true  statement  of  all  his  receipts  and  disbursements  on  ac- 
count of  said  David  A.  Abeel,  and  all  money  and  other  personal 
property  of  the  said  David  A.  Abeel  which  have  come  into  depo- 
nent's hands,  or  have  been  received  by  any  other  person  by  his  order 
or  authority,  or  for  his  use  since  his  appointment,  and  of  the  value  of 
all  such  property,  together  with  a  full  and  true  account  of  the  manner 
in  which  he  has  disposed  of  the  same,  and  of  all  the  property  re- 
maining in  his  hands  at  the  time  of  the  filing  of  said  inventory  and 
account  ;  and  a  full  and  true  description  of  the  amount  and  nature 
of  each  investment  made  by  him  since  his  appointment,  and  that  he 
does  not  know  of  any  error  or  omission  in  the  said  inventory  or  ac- 
account  to  the  prejudice  of  the  said  David  A,  Abeel. 

{Add  jurat.)  (Signature.) 

Section  2342  does  not  give  to  the  court  originally  appointing 
the  committee  of  a  lunatic  the  exclusive  jurisdiction  over  the 
estate  of  the  lunatic  after  his  decease.  Thus,  where  a  committee 
was  appointed  by  the  Court  of  Common  Pleas,  the  Supreme  Court 
has  jurisdiction  on  an  accounting  under  this  section.  Butler  v. 
Jarvis,  51  Hun,  252,  4  Supp.  138,  Van  Brunt,  J.,  dissenting. 

The  court  will  not  restore  the  estate  and  discharge  the  com- 
mittee of  an  habitual  drunkard,  except  upon  proof  of  a  perma^ 
nent  restoration  ;  there  should  be  a  year's  voluntary  and  total  ref- 
ormation. Matter  of  Hoag,  7  Paige,  312.  A  petition  by  a  lu- 
natic to  supersede  a  commission  may  be  referred,  or  he  may  be 
examined  by  the  court.  Matter  of  Hanks,  3  Johns.  Ch.  567. 
Where,  after  a  committee  has  been  appointed,  the  mind  of  the 
lunatic  has  been  restored  in  part,  the  court  may  discharge  the 
proceedings  against  him  partially,  so  far  as  to  enable  him  to  make 
a  will  under  judicial  supervision,  with  leave  to  revoke  it  wholly 
without  such  sanction,  retaining,  however,  control  of  his  prop- 
erty so  far  as  is  necessary  to  protect  it.  Matter  of  Burr,  2  Barb. 
Ch.  208.  Where  committees  both  of  the  person  and  estate  have 
been  appointed,  the  former  will  not  be  discharged  on  the  petition 
of  the  lunatic,  alleging  that  he  is  so  far  restored  to  reason  as  to 
be  able  to  govern  himself,  if  it  does  not  appear  that  he  is  yet 
competent  to  manage  his  estate,  if  no  application  is  made  to  dis- 
charge the  committee  of  his  estate. 


728  COMMITTEE   FOR   LUNATICS,  ETC. 

Art.  6.     Powers  and  Duties  of  Committee. 

Precedent  for  Order  Discharging  Committee 

At  a  term  of  the  county  court  held  at  the  court-house  in  the  city  of 

Kingston,  Ulster  County,  N.  Y. ,  June  23,  1886  : 
Present: — Hon.  William  S.  Kenyon,  County  Judge  0/ Ulster  County. 

In  the  Matter  of  David  A.  Abeel,  an  Habitual    I 
Drunkard.  f 


On  reading- and  filing  the  petition  of  David  A.  Abeel,  above  named, 
dated  June  20,  1886,  setting  forth  that  he  has  been  habitually  tem- 
perate in  the  use  of  ardent  spirits  for  twelve  months  past,  and  pray- 
ing for  the  discharge  of  his  committee,  John  W.  Searing,  heretofore 
appointed  in  the  above  matter,  and  for  the  restoration  of  his  prop- 
erty, and  on  reading  and  filing  the  affidavits  of  John  Craw  and 
Hiram  Connors,  dated  respectively  May  15,  1886,  and  May  23,  1886, 
in  support  of  said  petition,  and  upon  examining  the  said  David  A. 
Abeel,  in  open  court,  as  to  his  habits,  etc.  : 

It  is  hereby  ordered  on  motion  of  Charles  Davis,  counsel  for  said 
David  A.  Abeel,  that  the  said  committee,  John  W.  Searing,  hereto- 
fore appointed  herein  of  the  person  and  estate  of  said  David  A.  Abeel, 
be  and  he  is  hereby  discharged,  and  that  he  restore  to  said  David  A. 
Abeel  the  property  remaining  in  his  hands  of  the  said  David  A. 
Abeel,  after  deducting  the  legal  charges  and  expenses  of  the  said 
committee.  WILLIAM  S.  KENYON, 

County  Judge  of  Ulster  County. 

It  seems  that  under  §  2343  the  Supreme  Court  has  authority  to 
make  an  order  discharging  the  committee,  although  it  was  ap- 
pointed by  the  Court  of  Common  Pleas.  Butler  v.Jarvis,  5 1  Hun, 
252,  4  Supp.  138.  It  seems  that  the  provisions  of  §  2343,  for 
the  discharge  of  the  committee  when  the  person  subject  to  the 
commission  becomes  "  competent  to  manage  his  affairs,"  does 
not  mean  competency  to  manage  a  large  estate,  if  the  person 
happens  to  possess  one.  The  test  of  a  man's  right  to  be  re- 
stored to  the  control  and  possession  of  his  property  is  not  com- 
petency to  manage  a  large  estate,  but  his  restoration  to  mental 
health  and  his  fitness  for  the  common  and  ordinary  affairs  of 
life.  Matter  of  Brugh,  61  Hun,  197,  16  Supp.  551,  40  St.  Rep. 
573.  See  this  case  for  tests  for  recovery  of  sanity  as  approved  by 
the  court. 

After  the  committee  has  been  discharged  on  the  lunatic's  re- 
covery the  court  has  no  further  jurisdiction  over  the  property  of 
the  former  lunatic,  except  to  pass  upon  the  accounts  of  the 
committee.  Thus  the  court  cannot  compel  the  restoration  of 
property  by  one  to  whom  it  has  been  transferred  by  the  former 


COMMITTEE   FOR    LUNATICS,  ETC.  729 

Art.  6.     Powers  and  Duties  of  Committee. 

lunatic  after  the  committee  has  been  discharged.  Matter  of 
Dowd,  19  Misc.  688.  Section  2343  applies  only  to  the  recovery 
of  the  lunatic  and  not  to  his  death.  Therefore  the  court  has  no 
power  after  the  death  of  lunatic  to  supersede  the  commission  of 
lunacy  on  the  ground  that  the  lunatic  has  been  restored  to  rea- 
son. Matter  of  Owens,  44  St.  Rep.  307.  In  proceedings  for  the 
supersedeas  of  a  commission  of  the  lunatic  the  manner  of  de- 
termining the  question  as  to  the  sanity  of  the  lunatic  is  in  the 
discretion  of  the  court.  The  supposed  lunatic  has  no  right  to 
have  the  question  of  his  lunacy  submitted  to  a  jury,  and  the 
court  may  determine  it  either  upon  affidavits,  or  personal  ex- 
amination of  witnesses,  or  by  sending  it  to  a  referee  to  take 
evidence  and  report,  or  by  trial  before  a  jury.  Matter  of  Blew- 
itt,  138  N.  Y.  149,  51  St.  Rep.  844. 

Upon  the  death  of  a  lunatic,  the  powers  and  duties  of  his  com- 
mittee cease  ;  any  legal  claims  against  the  estate  can  thereafter 
only  be  enforced  in  the  manner  furnished  by  law.  Matter  of 
Bcckwith,  87  N.  Y,  503.  By  §  2344  it  seems  that  the  committee 
of  the  person  and  estate  of  the  lunatic  who  purchased  real  estate 
with  the  name  of  the  lunatic  has  no  right  to  take  title  in  his  own 
name  as  committee,  but  such  title  should  be  taken  in  the  name 
of  the  lunatic.  People  ex  rel.  Canaday  v.  Williams,  90  Hun,  503. 
Where  a  lunatic  has  died  and  an  administratrix  is  appointed 
pending  suit  instituted  by  the  lunatic's  committee  to  obtain  pos- 
session of  money,  a  trustee  will  be  appointed  to  carry  on  the 
litigation.  Killick  v.  Monroe  County  Sav.  Bank,  i  Supp.  501,  17 
St.  Rep.  283.  Where  no  executor  or  administrator  is  appointed 
over  a  lunatic's  estate  upon  his  death  the  committee  may  apply 
to  the  court  for  his  discharge,  on  giving  notice  to  the  heirs  and 
next  of  kin.  Upon  such  discharge  the  committee  should  be  al- 
lowed payments  made  by  him  before  his  appointment  for  claims 
against  the  lunatic  and  for  sums  expended  in  the  support  of  the 
lunatic's  children.  Matter  of  Forkell,  8  App.  Div.  399.  But  such 
allowance  should  be  passed  upon  by  the  court  appointing  the 
committee,  and  should  not  be  determined  in  a  proceeding  to 
compel  payment  to  the  committee  of  an  award  for  the  lands  of 
the  lunatic  taken  in  condemnation  proceedings.  Matter  of  Board 
of  Street  Opening,  89  Hun,  527,  69  St.  Rep.  796. 

By  virtue  of  §  2344  the  property  of  the  lunatic  upon  his  death 
is  administered  as  if  no  committee  had  been  appointed,  and  the 


r\ 


730  COMMITTEE   FOR   LUNATICS,  ETC. 

Art  6.     Powers  and  Duties  of  Committee. 

estate  of  the  deceased  incompetent  is  turned  over  to  the  executor 
or  administrator  aud  the  debts  of  the  estate  are  paid  by  such  ex- 
ecutor or  administrator.  Matter  of  Dowd,  19  Misc.  690.  Al- 
though the  lunatic  has  died,  a  person  whose  deed  has  been  in- 
validated by  an  inquisition  will  be  permitted  to  traverse  the  in- 
quisition. Matter  of  Owens,  44  St.  Rep.  307.  Where  a  lunatic 
died  before  the  confirmation  of  the  inquisition,  the  court  has  ju- 
risdiction to  order  the  costs  and  expenses  of  the  proceeding  to  be 
paid  out  of  the  estate.    Matter  of  Loft  house ,  3  App.  Div.  140. 


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